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TMI Blog1958 (4) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... his appeal may be briefly stated: The appellant, one of the partners of a registered firm of Messrs. Vuppala Peda Venkata Ramaiah & sons, submitted a return of income tax on 31st August, 1951, for the assessment year 1951-52. He declared an income of ₹ 30,823 including therein a provisional sum of ₹ 10,986 as his share of income for the aforesaid firm. At that time, the firm's assessment was not completed. Therefore, the assessee requested the taxing officer to accept his share of the income from he profits derived by the firm as shown in the return as correct subject to the condition that the assessment may be revised by the Department as and when the firm's assessment was completed. The Income-tax Officer acceded to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents, if any, accompany ing it, after giving due effect to (i) the allowance referred to in para graph (b) of the proviso to clause (vi) of sub-section (2) of section 10, and (ii) any loss carried forward under sub-section (2) of section 24. (2) A partner of a firm may be provisionally assessed under sub section (1) in respect of his share in the firm's income, profits and gains, if its return has been received although the return of the partner himself may not have been received. (3) A firm may be provisionally assessed under sub-section (1) as if it were an unregistered firm unless the firm fulfills such conditions as the Central government may by notification in the official Gazette, specify in that behalf. (4) There shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined and consequently the tax eligible in regard to the share of the income of the appellant could not be fixed. That being so, the appellant requested the Department to make an assessment on the basis of the figure mentioned in this return and that in the event of larger income being found to have been received by him he had no objection to have the assessment made on the basis of the correct figure. It is in compliance with this request of the appellant that the assessing authority computed this taxable income of the assessee. In this situation, we think that the assessment comes within section 23B(1). Assuming it is not governed by that sub-section we feel that this could be sustained under sub-section (2). It is urged by the learned Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that such a course is not per missible under the provisions of the Act. Having induced the Department to adopt the course it did by his representation and conduct, he would not be permitted to question the validity of the order based upon his undertaking to pay the correct tax after the firm was finally assessed. In our judgment, the case falls within the doctrine embodied in sec tion 115 of the Evidence Act. We are also supported in our view by the judgment of this court in Baroness Wilhelmine von Maltazan v. Customs Collector, Visakha patnam [1957] 2 All. W.R. 207 at 214, which arose under section 30 of the Sea customs Act. The learned Judges had to deal without scope of clauses (a) and (b) of that section. The objection that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e having the effect of enhancing the assessment or reducing the refund unless the Assistant commissioner or the Income-tax Officer has given notice to the assessee of his intention to do so and he has allowed him a reasonable opportunity of being heard." The strees of the argument on behalf of the appellant is that since it is the notice that gives jurisdiction to the assessing officer to enhance the assessment the want of it is fatal to the proceedings under the section. We do not think this argument is admissible. It is not by virtue of section 35 that the Department is empowered to levy the income-tax. The charging sections are sections 3 and 4 of the Act and it is by force of these provisions that the concerned officer are compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment and so on are machinery only. They enable the liability to be quantified, and when quantined to be created by the charging section and all the materials for ascertaining it are valuable immediately." There is thus no scope for the contention that the failure to issue notice has rendered all the proceedings void. Even otherwise, we think there is no substance in that contention for the reason that the appel lant who was one of the partners of the firm was present at the time when the assessment of the firm was completed. That being so, there is no question of his not having any notice of the final determination of the firm's income which has furnished the basis for the rectification of the provisional assessment. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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