S SANTHOSA NADAR Vs. INCOME TAX OFFICER FIRST ADDL

JUDGEMENT

(1.) THIS is a petition for the review of the order made in the writ petition mentioned above. That writ petition sought for the issue of a writ' of certiorari to call for the records of the First Additional Income-tax Officer, Tuticorin, and to quash the order of assessment, dated 26th March, 1956, for the assessment year 1947-48. In order to appreciate the point that arises in this petition for review, it is necessary to state certain facts that arose for consideration in the abovementioned writ petition and another writ petition, No. 1269 of ig6of, which was also heard at the same time.

(2.) THE petitioner, a resident of Tirunelveli, carried on business in Ceylon. He did not file any returns of his income for the assessment years 1945-46, 1946-47 and 1947-48 in response to the general notice published under Section 22 (1) of the Income-tax Act, but on 20th March, 1954, he voluntarily filed returns for all the three years. THEse returns were ignored by the Income-tax Officer, who, with reference to the assessment year 1945-46, initiated proceedings under Section 34 of the Act and finalised the assessment on 5th March, 1955, under Section 34 read with Section 23(4). For the assessment year 1947-48, resort was not had to Section 34, but the assessment was completed under Section 23(3) of the Act on 26th March, 1956. In the writ petition referred to, the validity of the assessments themselves was challenged on the ground that on the respective dates of assessments, they were barred by limitation. A Bench of this Court, to which I was a party, went into the question in some detail and held1 that a return filed by the assessee, after the expiry of the period of four years specified in Section 34(3) cannot form the basis of any valid assessment. THE Bench observed:

(3.) IT is manifest that a failure to furnish a return of income which an assessee is required to furnish by a notice given under Sub-section (1) or (2) of Section 22 would fall within Section 28(1)(a). The Legislature has provided for various categories of failures and wilful omissions. Section 28(1)(a) covers cases of failure to make a return of the income in response to a general or special notice. Section 28(1)(b) takes note of cases of failure to comply with a notice under Section 22(4) calling for the production of accounts and documents or other information required by the Income-tax Officer. But this again has reference to a case where a return has been made or a notice under Section 22(2) has issued. IT also takes note of failure to comply with a notice under Section 23(2) of the Act requiring the presence of the assessee or the person who made the return. When we come to Section 28(1)(c), it deals specifically with the concealment of particulars of income or the deliberate furnishing of inaccurate 'particulars' of income. In the setting in which this sub-clause finds place, it is impossible to construe Section 28(1)(c) except as relating to a case where a return has been filed but from which return, particulars of income have been omitted or any particulars have been deliberately inaccurately furnished. The use of the expression 'particulars of his income' and 'particulars of such income' would be wholly inapposite in a case where no return has at all been filed; such a case would clearly come within the scope of Section 28(1)(a) alone.