Case: State Of Assam &amp; Anr Vs. D.C. Choudhuri &amp; Ors

an end and as no return had been furnished and as the authorities wished to proceed under Section 22 (2) they should not do so without a notice under Section 34".8. The above view was approved by this Court in Commr. of Income-tax, Bombay v. Ranchhoddas Karsondas, Bombay, (1960) 1 SCR 114 = (AIR 1959 SC 1154 ), but the portion which has been extracted does not support the contention which has been pressed on behalf of the appellant. Indeed it has been relied upon more firmly by the counsel for the respondents. If this view is accepted to be correct it follows that a notice under Section 30 of the Act, in the present case, would be necessary if at the end of the assessment year no return has been made by the assessee and the authorities wish to proceed under Section 19 (2). The case would be entirely different where he himself chooses voluntarily to make a return. This he can do after the publication of a general notice under Section 19 (1) of the Act. If the return is filed no question arises of any income having escaped assessment. The return under the provisions of Section 19 (3) of the Act can be furnished at any time before the assessment is made. This is what this Court held in State of Assam v.Deva Prasad Barua, Civil Appeals Nos. 808 and 809 of 1967, D/- 14-8-1968 = (reported in AIR 1969 SC 831 ).9. The position is altogether different if no return has been made by the assessee and where income has not been assessed at all because for one reason or the other no assessment proceedings were initiated. That would be a case of "escaped assessment" within Section 30 of the Act. The matter was examined at length by this Court in Ghanshyam Das v. Regional Asst. Commr. of Sales Tax, Nagpur, (1964) 4 SCR 436 = (AIR 1964 SC 766 ) with reference to the provisions of the Central Provinces and Berar Sales Tax Act, 1947. The following principles were laid down in that case which are noteworthy :(1) In the case of a registered dealer the proceedings before the Commissioner started factually when a return was made or when a notice was issued to him either under Section 10 (3) (under which the Commissioner has to issue a notice if no return is submitted) or under Section 11 (4) (which provides for the best judgment assessment) of the Sales Tax Act. The statutory obligation to file a return did not initiate the proceedings.(2) Once a statutory return was filed pursuant to a notice under S. 10 (3) or Section 11 of the Sales Tax Act the proceedings did not come to an end until the final assessment was made.(3) The expression "escaped assessment" in Section 11-A of the Sales Tax Act included that of a turnover which had not been assessed at all because for one reason or the other no assessment proceedings were initiated and no assessment was made in respect thereof.10.Keeping in view the above principles it must be held that in the absence of a return having been filed by the assessees in the present case pursuant to a general notice under Section 19 (1) of the Act assessment could be made only after due notice under Section 19 (2) or by initiating proceedings under Section 30 of the Act. Section 19 (2) requires that an individual notice is to be served in the financial year. If no notice is served under that section proceedings under Section 30 can be initiated by a notice in accordance with that section within three years of the end of that financial year.In this connection it may also be remembered that Section 43 (2) (a) of the Act confers a valuable right on the assessee in the matter of choosing the forum for the assessment. According to that provision an assessee may on receipt of the first notice served on him under Section 19 (2) apply to the Agricultural Income-tax Officer by whom such notice is served, to be assessed at the usual place of residence or at the place where the accounts relating to his agricultural income are kept. The Agricultural Income-tax Officer can then make an order that the assessee shall be assessed at the place specified in the application or he has to refer the matter to the Assistant Commissioner of Agricultural Income-tax whose decision shall be final. No such right is conferred on the assessee with reference to publication of a general notice under Section 19 (1). It shows, therefore, that the proceedings for assessment under the Act can be initiated only by service of a notice under Section 19 (2) or by having resort to the provisions of Section 30 of the Act.11. Counsel for the appellant has sought to make a distinction between the decision given under the provisions of the Income-tax Act by pointing out that under Section 20 (4) of the Act best judgment assessment can be made on the failure to make a return under sub-section (1) or sub-section (2) of Section 19 whereas under S. 23 (4) of the Income-tax Act such an assessment can be made only where any person fails to make the return required by any notice given under sub-section (2) of Section 22 which is equivalent to Section 19 (2) of the Act. This distinction is hardly material when the principles which have been laid down by this Court are kept in view. In support of his contention counsel for the appellant has also called attention to a decision of the Privy Council in Gokuldas Ratanji Mandavia v. Commr. of Income-tax, (1960) 38 ITR 224 (PC) in which the provisions of the East African Income Tax (Management) Act, 1952, came up for consideration. Those provisions are altogether different and the decision rested on the wording of S. 71 of that enactment. It cannot, therefore, be of any assistance in the present case.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Thus sub-sections (1), (2) and (3) of S. 19 of the Act are identical with and correspond to sub-sections (1), (2) and (3) of Section 22 of the Income-tax Act.7. Under Section 20 of the Act if the Agricultural Income-tax Officer is satisfied that a return made under Section 19 is correct and complete he has to assess total agricultural income of the assessee according to it. If he has reason to believe that such a return is incorrect or incomplete he has to serve a notice requiring the person who has made the return to produce any evidence on which he may rely in support of the return. After hearing such evidence as the person making the return may produce and such other evidence as the officer may require on specified points the assessment order is to be made.The position is altogether different if no return has been made by the assessee and where income has not been assessed at all because for one reason or the other no assessment proceedings were initiated. That would be a case of "escaped assessment" within Section 30 of the Act. The matter was examined at length by this Court in Ghanshyam Das v. Regional Asst. Commr. of Sales Tax, Nagpur, (1964) 4 SCR 436   = (AIR 1964 SC 766  ) with reference to the provisions of the Central Provinces and Berar Sales Tax Act, 1947. The following principles were laid down in that case which are noteworthyIn the case of a registered dealer the proceedings before the Commissioner started factually when a return was made or when a notice was issued to him either under Section 10 (3) (under which the Commissioner has to issue a notice if no return is submitted) or under Section 11 (4) (which provides for the best judgment assessment) of the Sales Tax Act. The statutory obligation to file a return did not initiate the proceedings.(2) Once a statutory return was filed pursuant to a notice under S. 10 (3) or Section 11 of the Sales Tax Act the proceedings did not come to an end until the final assessment was made.(3) The expression "escaped assessment" in Section 11-A of the Sales Tax Act included that of a turnover which had not been assessed at all because for one reason or the other no assessment proceedings were initiated and no assessment was made in respectin view the above principles it must be held that in the absence of a return having been filed by the assessees in the present case pursuant to a general notice under Section 19 (1) of the Act assessment could be made only after due notice under Section 19 (2) or by initiating proceedings under Section 30 of the Act. Section 19 (2) requires that an individual notice is to be served in the financial year. If no notice is served under that section proceedings under Section 30 can be initiated by a notice in accordance with that section within three years of the end of that financial year.In this connection it may also be remembered that Section 43 (2) (a) of the Act confers a valuable right on the assessee in the matter of choosing the forum for the assessment. According to that provision an assessee may on receipt of the first notice served on him under Section 19 (2) apply to the Agricultural Income-tax Officer by whom such notice is served, to be assessed at the usual place of residence or at the place where the accounts relating to his agricultural income are kept. The Agricultural Income-tax Officer can then make an order that the assessee shall be assessed at the place specified in the application or he has to refer the matter to the Assistant Commissioner of Agricultural Income-tax whose decision shall be final. No such right is conferred on the assessee with reference to publication of a general notice under Section 19 (1). It shows, therefore, that the proceedings for assessment under the Act can be initiated only by service of a notice under Sectiondistinction is hardly material when the principles which have been laid down by this Court are kept in view. In support of his contention counsel for the appellant has also called attention to a decision of the Privy Council in Gokuldas Ratanji Mandavia v. Commr. of Income-tax, (1960) 38 ITR 224 (PC) in which the provisions of the East African Income Tax (Management) Act, 1952, came up for consideration. Those provisions are altogether different and the decision rested on the wording of S. 71 of that enactment. It cannot, therefore, be of any assistance in the present case.