P.B.Mukharh, C.J. - (1.) The appellant made an application under Article 226 of the Constitution raising a question of interpretation of Section 297 (2) (a) of the Income-tax Act of 1961.
(2.) For the assessment year 1961-62 the appellant filed his return voluntarily on December 1, 1961. On February 1, 1963, a notice under Section 23 (2) of the Indian Income-tax Act, 1922 was issued and served on the appellant. On March 17, 1966, a further notice under Section 23 (2) of the Indian Income-tax Act, 1922 was issued calling upon the appellant to attend on March 22, 1966 for completion of the assessment. On March 23, 1966 the appellant informed the Income-tax Officer that as the aforesaid notice was served on the appellant after 1 P.M. it was not possible for him to comply with it. Thereafter on December 31, 1966, a notice under Section 221 of the Income-tax Act, 1961 was issued by the respondent Income-tax Officer on the appellant to show cause why a penalty should not be imposed upon him for not paying the tax assessed. On January 11, 1957 another notice under Section 154/155 of the 1961 Act was issued by the respondent Income-tax Officer for rectification of the purported assessment made under Section 144 of that Act. On January 21, 1967, two applications were presented by the appellant to the Income-tax Officer. In the first application, the petitioner contended that the assessment was ultra vires as it was made under the 1961 Act and not under the 1922 Act and therefore no question of penalty could arise. In the second petition, objection was taken by the appellant to the competency of the notice for reduction of the order of assessment already made. On February 16, ] 967, a not ice of demand and the corresponding challan and assessment order under Section 144 of 1961 Act relating to the assessment year 1961-62 were served on the assessee and on the same date the assessee made an application to the respondent Income-tax Officer requesting him to cancel the assessment and make a fresh assessment as he was not given reasonable opportunity to comply with the notice dated March 17, 1966. The appellant's aforesaid application was accepted and the respondent Income-tax Officer cancelled the assessment and made a fresh assessment for the year under Section 143 (3)/ 146 of 1961 Act on September 6, 1967.
(3.) The appellant thereafter took an appeal from the aforesaid order of assessment before the Appellate Assistant Commissioner. In the grounds of appeal, objections were taken to the inclusion of certain amount in the total income and there was an omnibus ground at the end viz. the assessment was otherwise bad in law and in the facts and circumstances of the case. But before the Appellate Assistant Commissioner no argument was advanced that the assessment was bad because it was made under the provisions of 1961 Act and the Appellate Assistant Commissioner gave the appellant certain reliefs by way of deductions which were given effect to by the respondent Income-tax Officer under Section 250 of 1961 Act in the order of assessment. No further appeals were taken by the petitioner to the Tribunal.;