Rankin, C.J.
1. The assessee in this case received a notice under Sub-section (2), Section 22, Income-tax Act, requiring him to lodge a return of his income by 2nd June 1927, No return was filed by that date; but, on 4th June, the assessee filed an application through his pleader asking the income-tax officer to give him time till 4th August. The income-tax officer gave him time till 25th July and, on 25th July, the assessee failed to file any return. Two days later, on 27th July, his pleader appeared before the income-tax officer and said that, as he had to leave Calcutta, he could not submit his return. The income-tax officer said that he could not wait and must finish the assessment there and then. Further adjournment was therefore refused. On that date an assessment was made by the income-tax Officer under Clause (4), Section 23, in default of the filing of return. It is quite clear under the Income-tax Act, that, although an assessee is late in filing his return, nevertheless if he does file it; before the assessment is actually made; the return has to be considered and dealt with although out of time.
2. In this case however the assessment was made within the meaning of Sub-section (4), Section 23, on 27th July by which time no return had been filed. On the next day, the assessee came along with his return, but no action could be taken upon that as an order of assessment upon a different basis altogether had already been made. A notice 'of demand was issued upon the basis of the order of assessment and this notice of demand appears to be inaccurate in respect that it did not make clear that the assessment had been made in default of filing a return as distinct from certain other defaults. However that notice of demand operated nothing. It was cancelled and a fresh notice issued. A demand notice to an assessee is simply a notice which apprises him of the previous fact, namely, that he had been assessed at a certain amount.
3. In this position, the assessee submitted several petitions; but, in particular, ho appears to have submitted an application before the income-tax officer under Section 27. It was quite open to the income-tax officer to entertain the application showing that the delay in filing the return was due to sufficient cause and that the assessee should be given the benefit of an order cancelling the assessment of 27th July and directing the assessment to be reopened. The income-tax officer however dealt with that matter on the facts, found no sufficient cause and rejected the application. From this order, an appeal was taken to the Assistant Commissioner. The Assistant Commissioner being of opinion that there was no sufficient cause simply dismissed the appeal. Then the matter was taken to the Commissioner and the Commissioner took the same view that the pleader's negligence was no sufficient cause; but, being asked to refer certain questions of law to this High Court, he has referred two. We are not concerned with the questions which he has not referred.
4. The first question is whether the second notice of demand was a legal one. The answer to that is that there can be no objection whatever to it. There was a perfectly good assessment order on 27th July and the fact that a mistaken notice was sent to the assessee in no way prevents a proper notice being sent when the mistake was discovered.
5. The second question which has been referred to us is whether the Assistant Commissioner of Income-tax should have considered para. 6 of the statement of facts submitted to him. The moaning of that question is whether the Assistant Commissioner on an appeal from an order refusing to re-open the assessment under Section 27 was obliged to enter into the merits of the assessee's return his actual position whether as a member of an undivided Hindu family or otherwise, The Income-tax Commissioner says that the only question before the Assistant Commissioner was whether the assessment should be re-opened, the order, dated 27th July set aside and the assessment re-opened. in my opinion, the Commissioner's view is perfectly right. He having decided that there was no sufficient cause or re-opening the assessment, the assessment order stool and there was nothing then to inquire about.
6. In my opinion therefore the two questions referred to us should be answered in favour of the income-tax authorities and against the assesses.
7. The assessee must pay the costs of this reference.
C.C. Ghose, J.
8. I agree.
Buckland, J.
9. I agree.