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TMI Blog1930 (1) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... s year. To the form are appended certain notes. Note 5(a) is: When you keep your accounts on the mercantile accountancy or book profits system you must file return in the following form: 2. Then follows the form. Rule 5(b) is: Where you do not keep your accounts in such a form you must file a statement showing how you arrive at the taxable profits. 3. The notes are part of the rule and have as much validity as the statement of total income above referred to. Section 59(5) of the Act declares that rules made under the section when published in the Gazette of India shall have effect as if enacted in the Act. Admittedly the assessee filed neither a return under note 5(a) nor a statement under note 5(b). The Income Tax Officer then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mely, whether or not the discretion given by Section 27 was properly exercised, arose out of the Assistant Commissioner's order under Section 31 and required the Commissioner to state a case, and refer it to Court. The Commissioner has accordingly referred the following question. whether or not the discretion given by Section 27 was properly exercised in this case. 4. The question referred has not been argued. Mr. Hay contended that the reference having been made it was open to him to argue any question of law which might be considered to arise and that he was not confined to the question referred. The only authority cited for the proposition is in re, The Commissioner of Income Tax v. S.P.K.A.M. Chettyar Firm A.I.R. 1930 Rang. 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be stated. In that case it could hardly be contended that it was open to the assessee to argue any question which he had not required the Commissioner to state. The same principle should apply when it is the Court which requires the Commissioner to make the reference and to state the case. Sub-section (5) is even more conclusive. The High Court upon the hearing of any case referred to it shall decide the questions of law raised thereby. I am of the opinion, therefore, that it is not open to the assessee to raise before the Court any question other than that referred. The question which Mr. Hay desires to raise is whether the assessment in the present case is in fact arbitrary and therefore illegal. The question actually referred as to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he was unable to do so, because Chettyar's account in general and his in particular were not kept on a yearly basis. The obvious reply to this is that it would be possible for him by taking sufficient trouble to have extracted such information from his own books, as would have enabled him to construct a profit and loss account for the preceding year and thus to have put himself into a position to comply with the imperative provisions of the law. On the face of it, therefore he had not shown sufficient cause for non-compliance with the requirements of note 5, and the Income Tax Officer was justified in so holding. I would answer the question referred that the discretion given by Section 27 was properly exercised in this case. 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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