Provisional tax assessment at assessee's request cannot later be challenged; absence of notice under a machinery provision is not fatal.

A provisional assessment made at the assessee's own request, with liberty to revise it after the firm's final assessment, was treated as valid under section 23B of the Income-tax Act, 1922. The absence of notice before rectification or enhancement under section 35(1) did not vitiate the proceedings because section 35 is a machinery provision and the tax liability arose from the charging sections; the assessee had also participated in the process and could not resile from the representation on which the Department acted. Relief under article 226 was denied because writ jurisdiction is discretionary and will not be used to let a party benefit from his own conduct.

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Issues: (i) whether the assessment made before the firm's final assessment was a provisional assessment within the scope of section 23B of the Income-tax Act, 1922; (ii) whether absence of notice before final rectification or enhancement under section 35(1) of the Income-tax Act, 1922 vitiated the order; and (iii) whether the assessee was entitled to relief under article 226 of the Constitution of India despite having induced the provisional assessment.

Issue (i): whether the assessment made before the firm's final assessment was a provisional assessment within the scope of section 23B of the Income-tax Act, 1922.

Analysis: Section 23B empowered the Income-tax Officer to make a provisional assessment on the basis of the return, and also permitted provisional assessment of a partner in respect of his share in the firm's income even where the firm's return had not yet been completed. The assessee had requested assessment on the basis of the figure shown in his return, with liberty to revise it after the firm's final assessment. On those facts, the assessment was treated as a provisional one and was also supported under sub-section (2).

Conclusion: The assessment was a valid provisional assessment under section 23B, and the challenge on that ground failed.

Issue (ii): whether absence of notice before final rectification or enhancement under section 35(1) of the Income-tax Act, 1922 vitiated the order.

Analysis: The charging liability to income-tax arises under sections 3 and 4, while section 35 is only a machinery provision for quantifying liability. The Court held that want of notice under the proviso to section 35(1) did not nullify the proceedings, particularly because the assessee had participated in, and was aware of, the firm's final assessment which formed the basis of the rectification. The reasoning also rested on the principle that a party who induced the Department to act on a representation cannot later challenge the resulting order, consistent with section 115 of the Indian Evidence Act, 1872.

Conclusion: Absence of notice under section 35(1) did not invalidate the assessment, and the objection was rejected.

Issue (iii): whether the assessee was entitled to relief under article 226 of the Constitution of India despite having induced the provisional assessment.

Analysis: The writ jurisdiction under article 226 is discretionary and is exercised to advance justice, not to aid a party seeking to take advantage of his own conduct. Since the assessee had procured the provisional assessment by his own request and undertaking, the Court held that it would be a perverse exercise of discretion to quash the order at his instance.

Conclusion: Relief under article 226 was properly refused.

Final Conclusion: The appeal and the connected writ appeals failed on all substantial grounds, and the impugned assessment order was left undisturbed.

Ratio Decidendi: A provisional assessment made at the assessee's instance cannot later be impeached by him, and absence of notice under a machinery provision does not defeat the tax liability created by the charging provisions or compel the exercise of discretionary writ jurisdiction.

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