Judgment

HEGDE, J.: This appeal by certificate by the Revenue is directed against the order made by the High Court of Calcutta in a reference under S. 66 (1) of the Indian Income Tax Act, 1922 (to be hereinafter referred to as the Act).

2. At the instance of the assessee, the Income-tax Appellate Tribunal A Bench, Calcutta referred to the High Court for its opinion two questions of law viz:

"(1) Whether the assessment is complete on the date when the income is assessed by the Income-tax Officer or on the date when the tax is computed by him and the challan demanding the tax is issued?

(2) Whether on the facts admitted or found in this case, the assessment was time-barred under the first proviso to section 34 (3) of the Indian Income-tax Act?"

3. The original assessment of the assessee for the assessment year 1944-45 was made sometime before March 13, 1953. Subsequently after obtaining the sanction of the Commissioner of Income-tax, the Income-tax Officer reopened the assessment under S. 34 (1) (a) of the Act. On March 13, 1953 he issued a notice to the assessee under S. 34 read with S. 22 (2) of the Act. After considering the objection of the assessee, the Income-tax Officer computed the income of the assessee under S. 34 read with S. 23 (4) on March 8, 1954 at Rs. 60,000/-. The note made by the Income-tax Officer on that day in the order sheet reads:

"Assessed as per assessment order on a total income of Rs. 60,000/- for the assessment year 1944-45 under S. 34/23 (4)".

4. But on that date the Income-tax Officer did not determine the tax due from the assessee. It appears that he determined the tax due from the assessee and issued a notice under S. 28 (3) in Form 30 only on March 31, 1954. The assessee contended that the assessment is barred under S. 34 (3). That contention was rejected by the authorities under the Act including the appellate tribunal but on a reference made by the tribunal to the High Court, the High Court following the decision of the Madras High Court in RM. P. R. Viswanathan Chettiar v. Commr. of Income Tax, Madras, 25 ITR 79 accepted the contention of the assessee while giving its advisory opinion on the questions of law referred to it by the appellate tribunal. This appeal is directed against that decision.

5. The provisions of law which are material for deciding the point in issue are Ss. 23 and 34 (3) of the Act. Those provisions at the material time read as follows:

"23 (1). If the Income-tax Officer is satisfied without requiring the presence of the assessee or the production by him of any evidence that a return made under section 22 is correct and complete, he shall assess the total income of the assessee, and shall determine the sum payable by him on the basis of such return.

(2) If the Income-tax Officer is not satisfied without requiring the presence of the person who made the return or the production of evidence that return made under section 22 is correct and complete, he shall serve on such person a notice requiring him, on a date to be therein specified, either to attend at the Income-tax Officer s office or to produce, or to cause to be there produced, any evidence on which such person may rely in support of the return.

(3) On the day specified m the notice issued under sub-section (2) or as soon afterwards as may be, the Income-tax Officer, after hearing such evidence as such person may produce and such other evidence as the Income-tax officer may require, on specified points, shall by an order in writing, assessee the total income of the assessee, and determine the sum payable by him on the basis of such assessment .

(4) If any person fails to make the return required by any notice given under sub-section (2) of section 22 and has not made a return or a revised return under sub-section (3) of the same section or fails to comply with all the terms of a notice issued under sub-section (4) of the same section or, having made a return, fails to comply with all the terms of a notice issued under sub-secti