Sanderson, C.J.
1. In accordance with the request contained in their order, dated 16th January, 1923, on the petition of Babu Iswar Chandra Chowdhuri to state a case under the provisions of Section 66 of the Indian Income Tax Act (XI of 1922), I have the honour to submit the following for the opinion of the Hon'ble High Court.
2. History of the Case:
The petitioner submitted a return of his income in accordance with Section 22(2) of the Act on the 24th June, 1922, in which he declared an income of Rs. 3,966-11-2, which income included nothing on account of bastu rents. His accounts were called for and examined on the 1st August following and he was assessed by his Income Tax Officer on Rs. 7,307 including Rs. 1,528-6-4 on account of bastu rents, calculated at 21/2 per cent, on the assessee's gross rental of Rs. 63,136. It is the inclusion of this item and the method by which the figure has been calculated which forms the subject of the present reference.
On the 16th October following, an appeal was field before the Assistant Commissioner in which this item was the chief subject o objection. This appeal was dismissed by the Assistant Commissioner in his order, dated the 12th November Hon'ble High Court.
On the 16th December a petition was filed before myself requesting me to state a case to the High Court under Section 66 of the Action inter alia the two grounds which from the subject of the present reference. This petition I rejected in my order, dated the 18th December as it then appeared to me from the petition and the order of the Assistant Commissioner annexed to it, that the questions in issue were purely of fact, namely, (a) whether there was any income from bastu rents, and (b) what that income was, both of which had been decided by the lower Courts.
On receipt of the order quoted above from the Hon'ble High Court on the 30th January last, I examined the whole record in order to ascertain what the questions of law were on which the case was to be stated.
3. The questions for decision:
(a) The petitioner's contention 'that the assessment in bastu estimated on 21/2 per cent. is based on no evidence admissible in a judicial proceeding' impugns merely the method adopted by the Income Tax Officer in estimating the amount of income received from the particular source, and followed on appeal by the Assistant Commissioner. The assessment order passed by the Income Tax Officer does not reveal why this particular percentage on rent roll was taken, or why this method of estimating the income was followed. But in a note on the margin of the Assistant Commissioner's order sheet appears the following remark : 'Bastu rent is calculated at 21/2 per cent, of the gross rental according to instructions;' and the Assistant Commissioner's order supplies the following explanation : 'This is the rate adopted in this district for bastu and other non-agricultural rents in estates for which no reliable evidence is produced to show a more exact estimate. The main principle of the Income Tax Act is that it is the duty of the assessee to supply the materials of his assessment [vide Section 22 and Section 23 (4)]. If he fails to supply them entirely, the Income Tax Officer is-to make the assessment to the best of his judgment under Section 23(4). If he supplies them but fails to substantiate them under Section 23(3), the Income Tax Officer has still 'to assess the total income of the assessee.' This is apparently to be read with Section 23(4) to mean that he must do so ' to the best of his judgment.' In the present case the assessee was naturally precluded by his contention, that he had no such income whatever, from showing the amount of the income which the Income Tax Officer supposed him to have. The latter accordingly had to fall back on something else, and he actually resorted to a percentage on gross rental, a percentage which, as appears from the Assistant Commissioner's, order, was deduced from other similar cases, occurring in the same district, was generally applied in the district, in such cases and, apparently, was generally accepted by the assessees as a fair basis of computation.
4. The first question therefore which I have the honour to refer for the opinion of the Hon'ble High Court is:
Whether in the absence of other reliable date as to the income of an assessee from a certain source, an Income Tax Officer is justified in making, and an Assistant Commissioner in upholding an assessment based on a formula which has been found in practice generally applicable in similar conditions to incomes from that source.
(b) The second contention the petition 'that the learned Assistant Commissioner erred in law in assessing tax on bastu with finding on evidence that there was bastu assessable under the Indian income Tax Act, 1922' is of greater importance. It appears from the assessment record that the inclusion of the item Rs. 1,528-6-4 on account of bastu income by the Income Tax officer in his assessment was based on no foundation in tact at all. This assessment order reads as follows : 'The Gomastha says no bastu rent is received, while the rent roll amounts to Rs. 63,135-15. No papers have been adduced concerning the last settlement showing that no bastu-rent is realised. I cannot accept this. It is too much to believe that persons holding non-agricultural land pay no rent.' From this it will be seen that the Income Tax Officer assumed that the assessee hid tenants holding non-agricultural land and that he derived income therefrom. The assessee in his verified return of income under Section 22(2) of the Act, had stated that he had no such income but the Income Tax Officer required him to prove that negative and in the absence of evidence in its support-he says 'no papers have been adduced concerning the last settlement showing that no bastu rent is realised' - held that he had failed to prove it, and proceeded to make an assessment on the general assumption that a landlord must have income for such non-agricultural sources assessable to income-tax.
5. When the case came before the Assistant Commissioner on appeal, the same attitude was adopted. It was assumed that there must be non-agricultural bastu income included in the rent roll, and the assessee was required to prove his contention that there was not. The evidence produced was considered unsatisfactory relating as it did, to a state of affairs twenty years before. I [ere again a reference is made to the District Settlement, the implication being that it was the assessee's duty to support his negative assertion from the settlement record.
6. The question of law which thus emerges, which seems to be that raised in paragraph 9, Clause (c) of the petition annexed to the Hon'ble High Court's order, is as follows : Whether an assessee having in a verified return of income stated that he derived no income from a certain source can be required by an Income Tax Officer to prove that statement; Whether, in the absence of such proof, the Income Tax Officer is legally justified in assessing him on income from that source without otherwise satisfying himself that he has such income : Whether on such an assessment being made and an appeal being filed against it, an Assistant Commissioner can require the assessee to prove his negative assertion : and whether, in the absence of such proof, he is legally justified in confirming the assessment.