DEVI EDUCATIONAL INSTITUTION Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) IN this tax case reference under section 256(1) of the INcome-tax Act, 1961 (hereinafter referred to as "the Act"), at the instance of the assessee, the following question of low has been referred to this court for its opinion :

(2.) FOR the assessment year 1971-72, on the basis of the turn filed by the assessee in FORm No. 3, the proceedings were closed as "N.A." on November 14, 1973. Subsequently, the Income-tax Officer had information that the assessee received donations from another trust and since, in his view, the income of the assessee had escaped assessment at the time of the passing of the original order of assessment, the Income-tax Officer issued a notice under section 148 of the Act requiring the assessee to file a return and also a notice under section 142(1) of the Act. On non-compliance with those notices by the assessee, the Income-tax Officer proceeded to make an ex parte assessment under section 144 of the Act, thereafter, the assessee filed application under section 146 of the Act for reopening the assessment. On the view that the assessee had not furnished any reason for non-compliance with the notices under sections 148 and 142(1) of the Act, the Income-tax Officer declined to reopen the assessment under section 146 of the Act as requested by the assessee. On appeal by the assessee to the Appellate Assistant Commissioner, the order of the Income-tax Officer was upheld on the ground that the assessee could have filed the return and there was absolutely no reason whatever for non-compliance with the statutory provisions, on further appeal to the Tribunal by the assessee, it took the view that, as the ex parte assessment had been made owing to the non-compliance with the notices under sections 148 and 142(1) of the Act and that the assessee could succeed only on establishing that it was prevented by sufficient cause from making the return under section 139(2) of the Act or it had no reasonable opportunity to comply with the notice under section 142(1) of the Act and as those grounds had not been established, the refusal to reopen the assessment under section 146 of the Act was in order.