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Application No. 11 of 1973, decided on 24th June, 1980.

Income‑Tax Act (XI of 1922)‑

---S. 23(1)(3) and Income‑tax Rules, r. 46‑Self‑assessment‑Income‑tax Officer enhancing declared income without issuing notice to assessee to correct mistake and notwithstanding First Proviso to r. 46 not arising in case‑Assessment made by Income‑tax Officer, held, not sustainable and returned version of assessee accepted.

Habibul Islam Bhuiyan for Applicant.

Nemo for Respondent.

SYED MUHAMMAD HUSSAIN, J

.‑This is an application at the instance of the Commissioner of Income‑tax, Dacca Zone, under section 66 of the Income. tax Act for a decision of this Court on the question whether the 3rd proviso to income‑tax rule 46 empowering the 1. T. O. to make assessment under section 23(3) of the Income‑tax Act where the return has been filed under self‑assessment procedure.

The self‑reassessment return filed by the assessee in the present case was modified and the amount of income shown therein was raised by the Income tax Department which was upheld by the Appellate Commissioner. The Tribunal however found that the 3rd proviso to Income‑tax rule 46 empo wering the 1. T. O. to make assessment under section 23(3) of the Income‑tax Act is not applicable unless the 1st proviso to Income‑tax rule 46 are com plied with. Income‑tax rule 46 provides‑for the completion of the assessment by the Income‑tax Officer under section 23(1) of the Income‑tax Act and it has, however, been provided at the 1st instance that where the return filed by the assessee is riot verified or is incomplete or is not accompanied by pro per documents or if there is any mistake in the computation of the total income the Income‑tax Officer, may require the assessee to comply within a specified date, and thereafter the Income‑tax Officer shall complete the assessment under section 23(1) of the Income‑tax Act. Only upon the failure of an assessee to comply with the aforesaid proviso to rule 46, the 3rd proviso to rule 46 will be applicable which empowers an Income‑tax officer to. Make assessment under section 23(3) of the Income‑tax Act., In the present case it has been found by the Tribunal that the 1st proviso to rule 46 as aforesaid did not arise at all and the assessee was never required to correct any mistake before completing the assessment as such, there could not be any invocation) of the 3rd proviso to rule 46. In Such circumstances the Tribunal rightly directed the I. T. O. to make a fresh assessment under subsection (1) instead of subsection (3) of section 23 of the Income‑tax Act. The answer to the question raised herein being made in, the affirmative. This application is rejected. Prayer for leave to appeal is also refused.

Application rejected.

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