BEAUMONT, CJ - (1.)SHORTLY, the facts which give rise to the question are these :- The Bombay Company which is referred to in the question is Company carrying on business in Bombay. The Hongkong Company carrying on business in Hongkong. In respect of the year 1926-27 the Bombay Company was assessed to tax as the statutory agent at the Hongkong Company. The matter was in dispute and carried to the Privy Council who held that there was no business connection between the two companies and that the Bombay Company was properly assessed as the agent of the Hongkong company. Thereafter the Hongkong company purported to terminate any business connection with the Bombay Company. In respect of the year 1928-29 the commissioner of Income-tax again assessed the Bombay Company as the statutory agent of the Hongkong Company, refusing to believe the evidence as to the severance of the connection between the two companies, and in April 1931 the Commissioner on this basis recovered payment of over 3 lacs of rupees in respect of the assessment of the Bombay Company. A reference was then made to this Court, and in August 1933 this Court held that there was no evidence to justify the Assistant Commissioner in holding that the Bombay Company was the statutory agent of the Hongkong Company. From this decision there was an appeal to the Privy council but the decision of this court was upheld. It is, therefore, established that at the time of the original assessment of the Bombay Company there was no evidence to justify such assessment. The Commissioner, however, refused to refund the tax which he had recovered on the alleged assessment, unless a third party guaranteed the payment of any fresh assessment. The Assistant Commissioner in January 1934 the Income-tax Officer issued the notice which is referred to in the question raised in this reference. The notice required the Bombay Company to produce or cause to be produced at the Income-tax Officers office in Bombay of 15th February 1934 books of accounts of the Hongkong Trust Corporation Limited, Hongkong, for the year ending 31st December 1927. He also gave notice under Section 23, sub-clause (2), requiring the attendance of the assessee on 15th February 1934. On 15th February 1934 the Income-tax Officer held that as the books had not been produced, the assessees were in default and he therefore made an order of assessment purporting to be to the best of this judgment under section 23(4). In that assessment he assessed the Bombay Company at precisely the same figure as that at which they had been assessed in the assessment which this court had held was not supported by any evidence. The assessee made an application for revision under Section 27 of that order which was stated pending an appeal to the Privy Council. Later, in September 1934, the assessee applied to this Court for an order which was stayed pending an appeal to the Privy Council. Later, in September 1934, the assessee applied to this Court for an order under the Specific Relief Act directing the Commissioner of Income-tax to repay the sum of over 3 lacs of rupees which he had received as tax Council held that there was no evidence to justify the original assessment on the ground that the Bombay Company was the statutory agent of the Hongkong Company, but that the Court had no jurisdiction under the Specific Relief Act to order repayment of the tax. In November the appeal to the Assistant Commissioner from the Income-tax Officers order was rejected. This reference is now made raising the question whether there was any evidence to justify the Income-tax Officer in holding that the books of the Hongkong Company ought to have been produced.
(2.)NOW Section 22(4), which is a section dealing with returns for the purposes of income-tax, provides that the Income-tax Officer may serve 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. In my opinion, it clear that the section only relates to accounts or documents which are in the possession, or under the control of, the person making the return. I think, that must be so, because failure to produce accounts or documents not only renders the tax-payer liable to assessment under section 23(4) but is also renders him liable under section 51 to a penalty by way of fine not exceeding ten rupees for every day during which the default continues. It is clear, in my opinion, that the Legislature could not have intended to impose a penalty on a person for non-production of documents which he was, in law, incapable of producing. NOW, in the present case, there is not a particle of evidence that the Bombay Company is in a position to produce or cause to be produced the books of the Hongkong company. It has been held by this court and the Privy Council that there is no evidence to show that there is any connection between the two companies and it is not suggested that any further evidence has been obtained by the Income-tax Officer. He says that he has got some confidential information, but as it is not in evidence we do not know what it amounts to. There is no evidence which can justify him in saying that the Bombay Company is in a position to produce the books of the Hongkong Company, which in law is a separate entity, and that being so, in my opinion, the order under Section 22(4) was not justified and the consequential assessment under section 23(4) was also not justified.
I understand that the sum of over three lacs of rupees recovered as tax as long ago as April 1932 is still in the hands of the Commissioner and had not been repaid to the assessee. When the matter was before this Court in August 1934 we passed certain structures upon the Commissioners conduct, and the matter was referred to by their Lordships of the Privy Council in the following passages :-

... The learned Chief Justice commented with some severity upon that part of the order of the Commissioner which imposed as a condition of refund that a guarantee should be given by Messers E. D. Sassoon & Co., saying that the Commissioner must have known perfectly well that he was not justified in imposing as a condition of refund that a guarantee should be given of some third party for the amount of any fresh assessment. He further observed with reference to the order under section 23(4) made by the Income-tax Officer on February 20, 1934, that it was perfectly obvious, and the Income-tax Officer must have known, that it would not be possible for the assessees to produce within 15 days books of accounts of the corporation in Hongkong or a corporation which according to the finding of the Court had no business connection with the assessees."

After holding that the Court had no jurisdiction to make an order under the specific Relief Act, their Lordships than go on to say :

(3.)THEIR Lordships cannot but agree, however, with the comments made by the learned Chief Justice upon the Commissioners order of January 16, 1934, imposing as a condition of refund that E. D. Sassoon & Co. Limited should undertake to be responsible for paying back the amount in case an assessment were levied again or the matter was taken on appeal to the Privy council. So, too, in the case of the order of the Income-tax Officer dated February 20, 1934, making an assessment in default under Sec. 23(4) for failure to comply with the order of January 30, requiring the Bombay Company to produce the Hongkong companys books of account on February 15, the structures of the High Court are plainly justified. To this their Lordships will add that the action of the Income-tax Officer in refusing to deal with the application under Sec. 27 until the disposal of the appeal to His Majesty in council was equally open to criticism. Whether it adds to or subtracts from the discredited such proceedings, if it be supposed that the Income-tax authorities considered themselves entitled to do what was necessary to retain to assessees money until the decision of this Board could be obtained, is a question upon which no opinion need here be ventured. It should suffice now to observe that since August 1934 (1933) (sic), the Income-tax authorities have been withholding from the Bombay Company over three lacs of rupees extracted from them by an illegal assessment order, and that there is no pretence of justice or law in the notion that the money can withheld in case on some future date a valid assessment may come into existence."
Unfortunately that expression of opinion has not sufficed to induce the Commissioner of Income-tax to do what he ought to have done August 1933, viz., repay the money. I have made these observations as it seems to me desirable at a time when proposals are being made to amend the Income-tax Act, that the Legislature should consider the desirability of protecting the tax-payer from abuse of authority. As the law stands there appears to be no means of compelling the Income-tax Commissioner to refund tax illegally levied.

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