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TMI Blog1930 (5) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in S.A. Subbiah Iyer v. Commr. of Income Tax AIR1930Mad449 Ed.] as an authority for the proposition that the High Court would not consider any point of law that was not raised either be ' fore the appellate officer or the Commissioner himself by the assessees. We have no reason to differ from what was laid down in that case and we think it but right that only such points 6i law should be considered by the High Court as were already before the officers of the Income Tax Department. 3. To find out what are the real points of law that arise in this case the following facts have to be stated: One Bankey Lal had several sons. We are concerned with only two, namely, Radhey Lal and Balmukand. Radhey Lal's son is Shyam Lal. There wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s own assessment order, under Section 23 (3) Income Tax Act. That section lays down that where a return has been made and the Income Tax Officer has reason to believe that the return is incomplete or incorrect he shall call upon the assessee to produce evidence and after hearing all the evidence that may be liable to be examined, the officer will make an assessment. It is to be noted that the Income Tax Officer was not professing to proceed under Section 23, Sub-section (4), which allows, in certain cases of default by the assessee, the Income Tax Officer to make an assessment to the best of his judgment. 5. The Income Tax Officer having found that some of the books of the assessees were not clear as regards the income derived by the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ordinary sense of the word, ever arose between the Income Tax Officer on the one hand and the assessees on the other as to the jointness or separation of the family. If it be true, as has been stated, ' that the Income Tax Officer came to know that the assessees were really members of a joint Hindu family, it was his duty, in the name of fair play, to tell the assessees that he proposed to assess them jointly as members of a joint Hindu family and to call oh them to show cause why he should not proceed accordingly. As already stated, the procedure that he had adopted was to assess the assessees separately. The mere fact that the statements of Radhey Lal and Balmukand taken at different dates indicated that they were members of a joint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income Tax Officer to accept such evidence as he might get for the purpose of finding out the true income. He does not in his order state any basis at which he arrived at the figure of ₹ 45,000 Section 13, Income Tax Act, did not authorize him to act arbitrarily and without any evidence. If the account books did not furnish any method of computation of the profits, he had to employ such methods, and such basis as appealed to him as the best, but he had to employ some basis or method as he thought fit. But he did not employ any method at all. We are therefore not in a position to say that he acted legally in the matter. Our answer therefore to this question is that the assessment was illegal having regard be the provisions of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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