1. JUDGMENT Syed Muhammad Husain, 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 I.T.O, to make assessm ent under Section 23(3 of the Income Tax Act where the return has been filed under self- assessm ent procedure.
2. The self-assessm ent 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 empowering the I.T.O, to make assessment u/s. 23(3 of the Income Tax Act is not applicable unless the lst proviso to Income Tax Rule 46 are complied with. Income Tax Rule 46 provides for the completion of the assessm ent by the Income Tax Officer under Section 23(1) of the Income Tax Act and it has however been provided at the lst instance that where the return filed by the assessee is not verified or is incomplete or is not accompanied by proper 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 u/s. 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 assessm ent under Section 23(3 of the Income Tax Act. In the present case it has been found by the Tribunal that the lst proviso to Rule 46 a 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 sub-section (3 of Section 23 of the Income Tax Act. The answer to the question raised herein being made in the affirmative. E This application is rejected. Prayer for leave to appeal is also refused.
3. Sultan Hossain Khan, J.-I agree.