1957 (3) TMI 77

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..... urn, a notice was given to it under Section 22 of the Income-tax Act. It was held by the Income-tax Officer that the assessee had failed to comply with this notice. -In addition, it was held by the Income-tax Officer that there had been deliberate suppression of certain profits by the assessee. On these findings, the assessee was assessed under Section 23 (4) of the Income-tax Act on the 31st of August 1945. Before this assessment order was passed, a notice was issued to the assessee purporting to be under Section 28 (3) of the Income-tax Act asking it to show cause why a penalty should not be imposed. The assessee replied to this notice on the 24th of November 1945. In the meantime, on the 30th of September 1945, the assessee had moved .....

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..... y of being heard. 4. The practice of the Income-tax Department no doubt is that a printed notice is issued calling upon the assessee to submit his, explanation either in writing or in person when the Income-tax Officer proposes to impose a penalty under Section 28 (1) of the Act. Such a notice not being prescribed under any provision of law, no question can arise about the validity of such a notice or the fresh issue of such a notice in a case like the one before us. The only basis on which a penalty imposed can be challenged under Section 28 (3) of the Income-tax Act can be that the assessee was neither heard nor was he given a reasonable opportunity of being heard. In the instant case, we find that at no stage was such a plea take .....

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..... on the question whether a fresh opportunity of being heard had to be given to the assessee or not after the cancellation of the assessment which had been made under Section 23 (4) of the Income-tax Act cannot be granted as that question does not arise unless a finding of fact is first given by the Tribunal whether such an opportunity had or had not been given. No finding was given because there was no plea. At this stage, this Court cannot ask for a finding on that question of fact and then frame a question of law if that question of fact happens to be answered in favour of the assessee. 6. Then only questions on which a statement of a case can be called upon by the Court are those which arise out of the appellate order of the Tribuna .....

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