TaxTMI 
TaxTMI 
1963 (4) TMI 79
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....ny is a private limited company duly incorporated on the 29th of May, 1957, under the Companies Act, 1956. A notice under section 22(2) of the Act, dated 5th May, 1959, was issued to the petitioner calling for a return for the assessment year 1959-60. In compliance with the aforesaid notice, a return declaring a loss of Rs. 28,214.63 nP. for the assessment year 1959-60 along with audited balance-sheet, profit and loss account and auditors' report was furnished on 8th of July, 1959. Thereupon, the Income-tax Officer issued a notice under section 23(2) of the Act dated the 31st of July, 1959, requiring compliance thereof on the 5th of August, 1959. On the 4th of August, 1959, the petitioner asked for adjournment which was granted and the ....
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....e taken up by the Income-tax Officer on any of these dates. The next date fixed was 20th of January, 1960. On this date on the request of the petitioner the case was adjourned to the 28th of January, 1960. Finally, the case was fixed for the 12th of February, 1960. Admittedly, the books were produced by the petitioner and the accounts were examined by the Income-tax Officer on the 12th of April, 1960, 20th of April, 1960, 29th of April, 1960, and 12th of May, 1960. The account books, thus between 8th of August, 1959, and the 12th of May, 1960, were admittedly produced by the petitioners and examined by the Income-tax Officer on a number of occasions. After the 12th of May, 1960, which was the last date on which the books were examined, ther....
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....t the books are lying with the police authorities at Delhi and he had not succeeded in getting them back so far and in the absence of those books the assessment could not be finalised. Hence requested that the books be got produced direct by your goodself from the above authorities to finalise the assessment." No information was given to the petitioner that his application was rejected, but the counter-affidavit of the Income-tax Officer states that the application was rejected. Two days later an assessment was made under section 23(4) of the Act for default under section 23(2) of the Act. The petitioner filed an appeal against the quantum of the assessment by way of abundant precaution. He did not, however, file any application under secti....
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..... A notice under section 23(2), as already observed, was issued only once and that was as far back as 31st of July, 1959, and that notice had been complied with to the best of the ability of the petitioner. It had produced the account books on which it relied in support of the return furnished by it. The account books were not produced once but several times and in these circumstances to say that there was no compliance with the order under section 23(2) would be a travesty of justice. The Income-tax Officer, if he wanted the production of account books again, had no alternative but to have issued a notice under section 22(4) of the Act. That notice, admittedly, for the assessment year 1959-60 was never issued, and if he failed to issue ....
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....elf from the above authorities to finalise the assessment." It was the duty of the Income-tax Officer, in the absence of a notice under section 22(4), to assist the assessee when it required his assistance by exercising his powers under section 37 of the Act and thus enable the petitioner to have access or procure the books of accounts which were required to support the return made by it. This application was rejected summarily, as already stated, but by rejecting this application the Income-tax Officer could not clutch at jurisdiction to make the assessment under section 23(4), which the law does not give him. The action of the Income-tax Officer, therefore, in making the assessment under section 23(4) was clearly without jurisdiction, in ....