S SANTOSHA NADAR Vs. INCOME TAX OFFICER FIRST ADDL

JUDGEMENT

(1.) -

(2.) THE petitioner who was a resident of Tirunelveli District carried on business in Ceylon. THE petitioner did not file any returns of his income in 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 he voluntarily filed returns for all the three years on March 20, 1954. With reference to the assessment year 1945-46, the Income-tax Officer initiated proceedings under section 34 of the Act with a notice dated March 25, 1954, which was served on the petitioner on March 29, 1954. THE assessment for 1945-46 was completed by the Income-tax Officer on March 5, 1955, under section 34 read with section 23(4). THE assessments for 1946-47 and 1947-48 were without recourse to section 34. THE assessment for 1946-47 was completed under section 23(3) on March 5, 1955. THE assessment for 1947-48, which was under section 23(4), was completed on March 26, 1956.

(3.) THE learned counsel for the Department urged that the validity of the assessments should not be investigated in these proceedings under article 226 of the constitution. He pointed out that the petitioner had availed himself of the remedies open to him under the Income-tax Act, and the proceedings under section 66(2) were pending disposal even now in this court itself. It was common ground that the plea of limitation, which is now the main basis for the challenge to the validity of the assessments made by the Income-tax Officer, was never put forward at any stage of the assessment proceedings and that there was no adjudication of that question by the Tribunal. THE learned counsel submitted that even if a reference was ordered under section 66(2) the question of limitation could not arise as a question of law on the orders of the Tribunal. THE further submission was that the failure of the petitioner to take this plea in the statutory proceedings open to him and availed of by him from seeking adjudication of that issue in these proceedings under article 226 of the Constitution.