H S IMAM Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) This reference arises under section 256(1) of the Income-tax Act, 1961. At the instance of the assessee, the following question of law is referred for the consideration of this court by the Income-tax Appellate Tribunal concerning the income-tax assessment year 1976-77.

(2.) A few facts may be noticed : The assessment proceedings for the year 1976-77 dragged on almost till the end of the period stipulated for the completion of the assessment. The assessment had to be completed on or before 31/03/1979. The Income-tax Officer issued a notice under section 143(2) of the Act fixing the case for hearing on 27/03/1979. The assessee complied with the notice and at the time of hearing, the Income-tax Officer required the assessee to furnish certain information and adjourned the case to 31/03/1979, on which date the assessment had to be necessarily completed in order to save limitation. On 31/03/1979, it appears, the assessee did not furnish the information. Consequently, the Income-tax Officer completed the assessment under section 144 of the Act to the best of his judgment. The ground for completing the assessment ex parte was that there was non-compliance with the notice issued under section 143(2) of the Act.

(3.) The assessee filed an appeal against the assessment before the Commissioner of Income-tax (Appeals) in which he questioned the validity of the ex parte assessment made. It was pointed out that there was compliance with the notice issued under section 143(2) inasmuch as the assessee was present on 27/03/1979, and the case was heard. The failure to furnish information required by the Income-tax Officer on 31/03/1979, could not result in an ex parte assessment. Obviously, the assessees contention was that information can be called for by the Income-tax Officer only under section 142(1) of the Act by the issue of an appropriate notice. Inasmuch as no such notice exists in the present case, there can be no default on the part of the assessee even if the information required was not furnished on 31/03/1979. It is not dispute that there was no notice issued to the assessee under section 142(1) of the Act.