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TMI Blog1944 (1) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... dered for the purpose of arriving at the figure of income. The assessees are a Hindu undivided family carrying on business as money-lenders. On June 10, 1939, the Income Tax Officer served them with a notice under Section 22 (2) of the Income Tax Act calling upon them to make a return of income for the year 1939-40. A return was submitted but was signed in Hindi by a person who is said to be a Ammuktear of the assessee. Apparently the Income Tax Officer did not notice that the signature was not the signature of the assessees and he accepted the return and issued a notice under Section 23 (2) calling for evidence in support of the return. During the proceedings initiated by Section 23 (2) the Income Tax Officer had reason to believe that certain items of interest had not been disclosed in the return. He thereupon issued a notice on August 1, 1940, calling upon the assessees to show cause why a penalty should not be imposed under Section 28 (1) (c) of the Act. On receipt of the notice the assessees through their pleaded informed the Income Tax Officer that the tax proceedings were misconceived inasmuch as the return was invalid since it had not been signed by the karta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when a decree has been passed ex parte, and although he appreciates the difficulty of attempting to construe one Act by reference to another he suggests that the analogy from the Code may be helpful. The Code under Section 96(2) provides that an appeal may lie from an original decree passed ex parte and Order 9, Rule 13, of the Code contains provisions for setting aside ex parte decrees under which the defendant must satisfy the Court that the summons was not duly served or that he was prevented by sufficient cause from appearing when the suit was called on for hearing. Under Order 9, Rule 13, the procedure is by an application to the Court for setting aside the decree which, as the learned Advocate points out, is a form of procedure entirely separate from the procedure which is available by way of appeal. It is true that under the Code there is a procedure under Order 9, Rule 13, and although there has been some conflict amongst the Courts as to whether a Court of Appeal may go into the question whether the decree should or should not have been passed ex parte, there are decisions to the effect that the Court of Appeal is entitled not only deal with the merits and the material on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 27, and by interesting the words applicable to Section 23 or Section 27 with the word amount they have definitely intended that the assessees right of appeal under Section 30 should be limited as regards those sections to the quantum of the assessment or tax. Reference has also been made to Section 31 of the Income Tax Act. Section 31 (3) provides that in disposing of an appeal the Appellate Assistant Commissioner may, in the case of an order of assessment, confirm, reduce, enhance or annul the assessment, or (b) set aside the assessment and direct the Income Tax Officer to make a fresh assessment after making such further enquiry as the Income Tax Officer thinks fit or the Appellate Assistant Commissioner may direct. Section 31 then provides that in the case of an order refusing to make a fresh assessment under Section 27 the Appellate Assistant Commissioner may confirm such order or cancel it and direct the Income Tax Officer to make a fresh assessment. Section 31 supports the contention that the Appellate Assistant Commissioner should deal with orders which had been made under Section 27 specifically. Sub-section (a) and (b) of Section 31 (3) are not appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been transferred in satisfaction of the debut. That is true, but the facts here are entirely different, and the difference is brought out by Baguley, J., in his judgment at p. 426 of the report. He points to the method which had been adopted there and says : It is not as though he (the assessee) had entered the acquisition of the land as equivalent to the receipt of a certain amount of money in a profit and loss account, or as though he had done anything else of that nature in which he definitely recognised the land as being the equivalent of a certain amount of money for purposes of calculating his profits. That appears to me to be exactly what has been done in the present case. The assessees have definitely valued each property and the Income Tax Officer, particularly when he was making an assessment to the best of his judgment, would in my opinion be amply justified in taking the value which had been placed upon these properties by the assessees themselves as the true value. In Commissioner of Income Tax, Bihar Orissa v. Maharajadhiraj of Darbhanga, the Board has to consider a somewhat similar transaction which had been entered into by the Maharajadhiraj of Darbhanga wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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