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Income‑tax Case No. 139 of 1973, decided on 30th November, 1983.

‑‑‑Ss.5(8) & 23(2)‑‑Income‑tax Rules, 1922, r. 46‑‑C.B.R. Instructions on subject of self‑assessment‑‑Return of income under self‑assessment scheme‑‑Claim not to be rejected unless it was a case of concealment and prior approval of I . A . C . was obtained by I.. T .O. before proceeding under normal law notwithstanding powers of I . T .O . under r. 46 of Income‑tax Rules, 1922‑‑Section 5(8) of Act, held, directed all officers and persons employed in execution of Act that they should observe and follow orders, instructions and directions of Central Board of Revenue.

Waheed Faruqui for Applicant.

Respondent (absent)

Date of hearing: 30th November 1983.'

The following question has been referred by the, Commissioner of Income‑tax:‑

"Whether on the facts and in the circumstances of the case the Income‑tax Appellate Tribunal was right in holding that the Income‑tax Officer was not justified in making regular assess ment "

2. The facts are that the respondent is retail sale dealer of cloth at Hyderabad. He filed Return of Income under Self‑Assessment Scheme showing Rs. 7,750 as net income for assessment year 1970‑71. The I.T.O. did not proceed to assess the respondent on the basis of his Return , but issued notice under section 23(2) and estimated his net income at Rs.13,000 on the estimated sale at Rs.1,00,000 against the sale of Rs.65,000 shown by respondent. The I.T.A. Tribunal allowed the appeal of respondent holding that the Income‑tax Officer was restricted in his power by instructions issued by C . B . R . which were to the effect that the claim to self assessment will not be thrown out unless it is a case of concealment of income and that prior approval of the I . A . C . would be taken by the I . T .O . before proceeding under normal law. The Tribunal had considered the position that the proviso to Rule 46 of the Income‑tax Rules did empower the I.T.O. to complete the assessment under normal law if he chose to do so.

3. We do not find anything wrong in the order of the appellate Tribunal, which was based on the instructions issued by the C.B.R. The Appellate Tribunal was justified in this view particularly in view of the fact that section 5(8) of the Income‑tax Act directs all officers) and persons employed in the execution of Income‑tax Act that they, shall observe and follow the orders, instructions and directions of the) Central Board of Revenue. It was of urged that such instructions had not been issued by the C . B . R Consequently, the answer of the question referred to us is in the affirmative.

M . B . A Question answered in affirmative.

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