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TMI Blog1928 (3) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... n 6th August 1926, the assessees submitted a return. The return which they submitted consists of the words and figures "Loss ₹ 26,000" under the head "Business." A notice was then issued upon them being a combined notice purporting to be under Clause (2), Section 23 and also Clause (4), Section 22. That required them to produce the accounts for 1980-81 and 1981-82 and also gave them an opportunity to call any other evidence on which they might rely in support of their return. On the date fixed by the notice the books of 1981-82 were examined and various adjournments were taken for the production of the books of 1980-81. There was a hearing on appointment on 26th August 1926, on 10th January 1927 and on 16th February 1927, and the final order of assessment was not made till the 26th February 1927. Although, therefore, these books for 1980-81 were called for, at all events, on 6th August 1926, they were not produced by the following February at the time when the assessment was made. The Income Tax authorities have held that ample time was given for their production and that their non-production was wilful, as indeed it is reasonably obvious from the dates an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Allahabad High Court decided on 4th January of this year Chandra Sen Jaini, In the matter of A.I.R. 1928 All. 283 a Division. Bench of that Court was of the same opinion. In my judgment there is no difficulty upon the answer to the first question. 7. The second question depends upon the construction to be put upon Sections 22 and 23 of the Income Tax Act. By Section 22 provision is made to the effect, in the case of companies, that the principal officer shall before 15th June in each year furnish a return of income without being asked. Provision is also made, in the case of other persons whose total income is, in the Income Tax Officer's opinion, such as to render such persons liable to Income Tax, that the Income Tax Officer may serve a notice requiring a return to be made. The concluding paragraph of that section then provides that the Income Tax Officer may serve on the principal officer of any Company or on any person upon whom a notice has been served under Sub-section (2) a notice requiring him. on a date, to be therein specified, to produce, or cause to be produced, such accounts or documents as the Income Tax Officer may require provided that he shall not require the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd secondly, that if in fact a notice is issued under Section 23(2) it is impossible for the assessee to be penalized for the mere non-production of accounts; in other words, the second case contemplated by Clause (4), Section 23 is no longer a case of which the assessee can be deemed to be an instance. 10. In my judgment the exposition which the Commissioner of Income Tax has given is correct. He points out that the sub-section contemplates three distinct cases and, to my mind, it is abundantly shown by him that there is no warrant in the statute for saying that after a return is made the power given by Clause (4), Section 22 is gone. The only ground which I have discovered for that opinion is the insertion of the harmless words "having, made a return" into Clause (4), Section 23. It seems paradoxical and improbable that the making of a return should put an end to the power of the Income Tax Officer to require the production of accounts. One would naturally suppose that the Income Tax Officer having seen a return may in some cases be in a better position than he would otherwise have been to say whether he thinks it necessary to inspect books of accounts or other documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed facts; though I would point out that the Income Tax Officer is not a Court, he has not the procedure of a Court, and he is to some extent a party and Judge in his own case. However true it be and for whatever purpose it be true that the assessment to Income Tax is to be done in a judicial manner, the first thing which must be laid down as a condition before a person can complain of any departure from this principle is this : that he too must produce the evidence which the law requires him to produce. It is idle and absurd for a person who has books of account and deliberately withholds them to complain of not being treated in a judicial manner. The judicial manner is a manner which proceeds upon evidence, and the basis of the statute is to see that available evidence is produced. It is then, and only then, that the assessment is to be made upon a judicial consideration of the evidence. Otherwise it is to be made "to the best of his judgment" and brevi manu. 14. In my judgment, there is no foundation for the assessees' contention on either of the points that have been referred to us. It seems to me, therefore, that the answer to these two questions should be as I h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the summary power given by Clause (4), Section 23. 18. Another case to which we have been referred is a decision of Mr. Justice Greaves and Mr. Justice Mukerji of this Court in the case of. Nirmal Kumar Singh v. The Secretary of State A.I.R. 192 Cal. 890. There, again, we have a case of an assessee who made a return and produced his accounts. At the time when he produced his accounts various matters were gone into between his gomasta and the Income Tax Officer. Without giving a proper notice requiring him to produce such evidence as he might desire in support of his return the Income Tax Officer assessed him upon a basis inconsistent with his return and in these circumstances one learned Judge thought that the statute had been substantially complied with and the other learned Judge (Mr. Justice Mukerji) took the view that the informality was one which had not been waived and could not safely be ignored. In the course of that judgment there is not only nothing to the -effect that the power to call for accounts must be exercised before the making of the return, but that judgment supports what the Income Tax Officer has done In this case. 19. Two cases have been drawn to our ..... 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