Case: Commissioner Of Income-Tax, Madras Vs. S. Raman Chettiar

in his assessable income interest received by him on arrears of rent on the ground that it was agricultural income. This view was held to be wrong by the Privy Council. The Income Tax Officer issued notices under S. 34 on August 8, 1948, without obtaining the approval of the Commissioner. Section 34 was amended by the Income-tax Business Profits Tax (Amendment) Act, 1948 (XLVIII of 1948). Assessments were made on the basis of the above notices dated August, 8, 1948. The question referred to the High Court was: "Whether in the circumstances of the case assessment proceedings were validly initiated under S. 34 of the Indian Income Tax Act". This Court held that:"As the Amending Act repealed the original Section 34 not from the day it was promulgated but from an earlier date, March 30, 1948, and substituted in its place the re-enacted Section containing the proviso, and provided that the re-enacted Section shall be deemed to have come into force with retrospective effect on March 30, 1948, the application of Section 6 of the General Clauses act was excluded. As the notices were all issued on August 8, 1948, at a time when on the statute book must be deemed to be existing a provision enjoining a duty upon the Income-tax Officer to record his reasons and submit then for the approval of the Commissioner before issuing notice under Section 34, unless that approval was obtained the notices could not be issued. The notices issued by the Income-tax Officer without complying with the conditions laid down in the proviso to Section 34(1) as re-enacted were invalid, and the entire proceedings for reassessment were illegal."In view of the question referred to the High Court, this Court was not really concerned with the validity of the returns made, but Mr. Sastri relies on certain observations made by the High Court and this Court. When the reference was before the Patna High Court in Commissioner of Income-tax, Bihar and Orissa v. Partap Singh Bahadur, 1956-30 ITR 484 : (AIR 1957 Pat 61 ) the learned counsel had contended that it was physically impossible for the Income Tax Officer to comply with the requirements of the amended S. 34 on August 8, 1948. The High Court, regarding this contention, observed that"the argument is correct, but the Income Tax Department was not prejudiced because notices under S. 34 could be re-issued after the 8th of September, the date of the Amending Act, and after complying with the requirements of the amended Section 34."This Court, in the appeal from the above decision, after holding that the notices were invalid, observed:"Indeed, there was time enough for fresh notices to have been issued, and we fail to see why the old notices were not recalled and fresh ones issued."These observations certainly show that this Court assumed that fresh notices could have been issued in that case. Mr. Sastri says that the Department has done exactly what the Supreme Court indicated in that case should be done. But, apart from the fact that there is no discussion on the question of the validity of the return, it is possible to say that on the facts in that case fresh notices could have been issued. In Maharajah Partap Singhs case, 1961-41 ITR 421 : (AIR 1961 SC 1026 ) the Maharajah had filed return for four assessment years 1944-45 to 1947-48 under S. 22, and assessments had been made but the income of the assessee with regard to interest on arrears of rent was not included. His returns in pursuance to a notice under S. 34 could not be treated as a return under S. 22(3) because he had already filed returns and was not purporting to revise his previous returns. But in the present case the assessee had never filed a return under S. 22. The first return he filed was in response to a notice under S. 34, but he could have filed this return even without a notice under S. 34, for the four years prescribed by S. 34(3) had not expired.10. This Court in 1959-36 ITR 569 : (AIR 1959 SC 1154 ) held that a return showing income below taxable limit was a good return and the Income-tax Officer could not choose to ignore the return and issue a notice under S. 34, Hidayatullah J., speaking for the Court, observed that "it is a little difficult to understand how the existence of a return can be ignored once it is filed." But this case is not of much help in determining whether the return in this case is a good return within S. 22(3) of the Act.11. Mr. Sastri further contends that if the notice under S. 34 is held to be bad, it must follow that the return made in pursuance of it must also be treated as bad. We are satisfied that there is no substance in this contention. The decision of the Calcutta High Court in R. K. Das and Co. v. Commissioner of Income-tax West Bengal, 1956-30 ITR 439 : (AIR 1956 Cal 161 ) certainly supports Mr. Sastris contention but, with respect, we are unable to agree with the reasoning of the High Court. Apart from fact that this Court did not approve of this decision in AIR 1959 SC 1 154, we are unable to appreciate that if the Income-tax Officer had based his assessment on the return treating it to be a return under S. 22(3), the assessment would not stand a moments scrutiny.12. We think that some confusion has crept into this branch of the Income Tax Law by the use of the words voluntary return and a non-voluntary return. Section 22 (3) does not use this expression and whatever the impelling cause or motive if a return otherwise valid is filed by an assessee before the receipt of a valid notice under S. 34, it is to be treated as a return within S. 22(3) for it falls within the language of the sub-section.

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

Explanation:
0[ds]These observations certainly show that this Court assumed that fresh notices could have been issued in that case. Mr. Sastri says that the Department has done exactly what the Supreme Court indicated in that case should be done. But, apart from the fact that there is no discussion on the question of the validity of the return, it is possible to say that on the facts in that case fresh notices could have beenare satisfied that there is no substance in this contention. The decision of the Calcutta High Court in R. K. Das and Co. v. Commissioner of Income-tax West Bengal, 1956-30 ITR 439  : (AIR 1956 Cal 161 ) certainly supports Mr. Sastris contention but, with respect, we are unable to agree with the reasoning of the High Court. Apart from fact that this Court did not approve of this decision in AIR 1959 SC 1  154, we are unable to appreciate that if the Income-tax Officer had based his assessment on the return treating it to be a return under S. 22(3), the assessment would not stand a moments scrutiny.12. We think that some confusion has crept into this branch of the Income Tax Law by the use of the words voluntary return and a non-voluntary return. Section 22 (3) does not use this expression and whatever the impelling cause or motive if a return otherwise valid is filed by an assessee before the receipt of a valid notice under S. 34, it is to be treated as a return within S. 22(3) for it falls within the language of the sub-section.In our opinion the appellant is not raising any new point. It is true that in the above cited proposition the appellant says that the return is valid but this follows the assertion that the notice issued on April 3, 1948 is22(3) permits an assessee to furnish a return at any time before the assessment is made. By virtue of S. 34(3), as it stood in 1949, assessment could have been made at least up to March 31, 1949, if the return was valid. Therefore, it may be implied, as laid down in Santosha Nadar v. First AdditionalITR 715 (Mad) and Commissioner ofBombay City II v. Bagwandas Amersey,ITR 239 (Bom) that the return must be filed before the time mentioned in S. 34(3). This condition is, however, satisfied in this case. Mr. Sastri says that it is further implicit in S. 22(3) that the return must be voluntary we are unable to appreciate that every return made under S. 22(3) must be a voluntary return, in the sense that it must be suo motu. If a return is made in pursuance to a general notice under S. 22(1) or a special notice under S. 22 (2), it is a return made voluntarily but not suo motu. It is a return made in response to a public notice or a special notice. If no return is made in response to notices under S. 22(1), and S. 22(2), the Act attaches certain penalties. In our view, it is not correct first to describe a return made under S. 22(3) in response to a notice under S. 22(1) or S. 22(2) as voluntary, and then say that a return made in response to a notice under S. 34 is not voluntary just because it warns the assessee that some income has escaped assessment. In our opinion, both types of returns are under S. 22(3) of the Act. In the first type of cases it is directly under S. 22(3). In case of a notice under S. 34, it is deemed to be notice under S. 22(2) and the return deemed to be a return under S. 22(3). From the language of S. 22(3), we are unable to say that the return dated September 4, 1948, was not a return within S. 22(3).