1968 (4) TMI 4

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....h 3, 1967. In that notice the assessee was required to file return by April 8, 1957. On May 17, 1957 a further notice was given to the assessee under sub-section (4) of section 22 of the Act for production of books and other documents by May 30, 1957. In the meantime, it appears, the assessee had gone to England and on September 6, 1957, the Income-tax Officer wrote a letter to him in regard to the case arising out of the notice under section 34(1)(a) of the Act. The assessee made no return. On March, 28, 1958, the Income-tax Officer made an assessment order against the assessee under sub-section (4) of section 23 of the Act; copy of that order is annexure "A". Against that order the assessee filed an appeal which was accepted by the Appell....

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.... an appeal under section 30 of the Act when the assessee had had no recourse to the proceedings under section 27 of the Act for cancellation of the order under sub-section (4) of section 23, the learned Tribunal, in this respect, relying on Naba Kumar Singh Dudhuria v. Commissioner of Income-tax , a decision by the Calcutta High Court. On the application of the assessee, the Tribunal has referred this question, under sub-section (1) of section 66 of the Act, to this court. " Whether the validity of the service of notices under section 34 can be challenged in an appeal against an order under section 23(4) when no proceedings under section 27 were taken to have the order under section 23(4) cancelled ? " The learned counsel for the a....

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....he learned, judges specifically rejected on consideration, among other matters, of the provisions of section 105 of the Code which, in brief, provides that whatever cannot be agitated in appeal may be made a ground of appeal in an appeal against the final decision of the case. No such situation realy prevails so or as sections 27 and 30 of the Act are concerned and an appeal against an order refusing an application under section 27 of the Act is expressly provided by section 30 of the Act. So the learned judges held that the matter of the validity of an assessment under sub-section (4) of section 23 was not open to question in an appeal under section 30 where no recourse had been had to proceedings under section 27 of the Act. In Mauladin A....