Patna High Court
Damodar Prasad And Ors. vs The Commissioner Of Income-Tax on 19 February, 1929
Equivalent citations: 120IND. CAS.639, AIR 1929 PATNA 409
JUDGMENT
1. This is an application under Section 66, Clause (3) of the Income Tax Act for an order on the Commissioner to make a reference to this Court on certain points of law set out in the petition. It appears that the petitioner submitted his return under Section 22 of the Act on the 23rd August, 1927. Thereupon a notice was issued by the Income Tax Officer under Section 22, Clause (4), of the Act directing him to produce certain account books. He produced two account books whereupon he was again ordered to produce certain other books and certain original promissory notes and bonds. The petitioner failed to comply with this requisition and thereupon the Income Tax Officer proceeded to make the assessment under Section 23, Clause (4).
2. The petitioner preferred an appeal to the Assistant Commissioner of Income Tax, which was, however, not in proper form inasmuch as it did not comply with the provisions of Rule 21 of the Income Tax Rules. The Assistant Commissioner passed the following order on the 2nd December, 1927:
The petition of appeal does not bear the signature of the appellant and has not been verified in the prescribed manner. It is, therefore, not admitted. Inform petitioner by post card.
3. Thereupon he went to the Commissioner with an application to refer the case to this Court. The learned Commissioner has refused to do so on the ground that the only point of law which could arise out of the order of the 2nd December, 1927, was whether the Assistant Commissioner was entitled in law to reject the appeal in limine. The learned Commissioner says that this question was not formulated by the petitioner under Section 65 (2) of the Act, while the two questions which had been formulated by him did not arise out of the appellate order and therefore, did not require any discussion. The learned Commissioner, however, did consider the point on the merits and was of opinion that no case had been made out for a reference to the High Court.
4. The petitioner has now come to this Court for an order upon the Commissioner to make the reference.
5. It is admitted before us that the petition of appeal before the Assistant Commissioner was not in proper form. Upon that admission it is clear that the Assistant Commissioner was right in refusing to admit the appeal. It is, however, contended that the effect of the order of the Assistant Commissioner was the rejection of the appeal and that the officer was not entitled to reject the appeal on account of certain defects in the form of the appeal and all that he could do was to call upon the petitioner to rectify the mistakes in the memorandum of appeal. In my opinion there is no pro vision which requires the Assistant Com-missioner to take this step, namely, to call upon the appellant to rectify mistakes in the memorandum of appeal. He did, however, inform the appellant by a post card that the appeal was not admitted on account of certain defects which were pointed out in the card. It was open to the appellant to approach the Assistant Commissioner with a prayer to allow him to rectify the mistakes and if he had done so there is no reason to suppose that the Assistant Commissioner would not have allowed him to do so, As has been pointed out by the learned Commissioner the only point of law which could arise out of the order of the 2nd December, 1927, was not taken before him, and, even assuming the petitioner is entitled to take this point here in this Court we are of opinion that the point is not a good point and cannot prevail. As regards the merits, it is clear that the matter not having been considered by the Assistant Commissioner it cannot be considered by us here in this Court. It however seems to be clear that it was open to the Income Tax Officer under Section 22, Clause (4) of the Act to require the petitioner to produce such accounts or documents as the Income Tax Officer thought necessary, and Section 23, Clause (4) provides that if the requisition under Section 22, Clause (4) is not complied with the Income Tax Officer shall make the assessment to the best of his judgment. There was the requisition under Section 22 (4) which was not complied with, and, therefore, the assessment made by the Income Tax Officer under Section 23 (4) appears to be legal.
6. This application must be dismissed with costs. Hearing fee three gold mohurs.