JUDGMENT

Walsh, Acg., CJ.

1. We accept the statement of the income tax Officer as being really the statement of the case on which our opinion is invited. He tells us that he was not satisfied within the meaning of sub-section (1) section 23 with the assessee's return, and that he therefore issued a notice to them under subsection (2) and fixed the date for the hearing, fully appreciating that it was a judicial proceeding in which he could summon independent evidence if he wanted it, or obtain information for himself from such materials as the assessee chose to produce on the appointed day. The assessee and their representatives attended with their books and the income tax Officer told them that the wastage which they were claiming to deduct from their gross returns was more than it ought to be, and more than it was in their other mill, or in previous years in this mill. It is obvious that if a person has once already been assessed in respect of the profits of a particular business, and the profits suddenly show a decrease resulting from the same bulk of material, something has happened to create a diminution of the profits; in that respect the onus is upon the assessee not as a matter of law, but as a matter of practice and common sense. If a man is receiving so much a year rental from house property, and he returns a smaller amount and explains the falling off by the fact that three houses have been burnt down and therefore could not be let to any tenant, the income tax Officer would naturally require him to satisfy him of that fact. The income tax Officer therefore rightly called upon the assessee for an explanation of this unusual wastage. He summoned nobody as a witness and examined nobody, either secretly or openly, who was not tendered on behalf of the assessee, and no suggestion that he had done so was put to him when he appeared before us. The assessees' first answer when asked for their explanation was that in this mill the material was of inferior quality. The income tax Officer refused to accept this, giving as his reason that he knew from the evidence of their books that they bought in bulk material of the same quality for both mills, and on that (to quote his exact words) "they kept quiet," which, as a question of fact, justifies the inference that they were not prepared to dispute the statement which he had made. He thereupon assessed them, disallowing what one 'may call the excess or abnormal or unusual wastage which their return for that year had put forward. An appeal was brought and they objected before the appellate court that they had no proper opportunity of proving the percentage of wastage which they claimed. That was rather an exaggerated way of stating what had happened in the Court below; but the Assistant Commissioner of income tax, regarding the assessee as entitled to ordinary justice and the full hearing, which every litigant has a right to, sent the case back to the income tax Officer' to give the assessee the further opportunity which they desired. What precise opportunity they had been deprived of does not appear, but in fact a re-hearing took place before the income tax Officer. On that occasion they produced oral evidence including an expert,...... on whom they greatly relied, and generally directed their evidence, as they were entitled to do, to showing that in this mill wastage was high and the percentage claimed was instified. The income tax Officer, knowing that in their other mill they kept a daily stock book by which the wastage could be roughly checked, although owing to the moderation of their claim on that mill he had never to check it from this stock book, asked orally, without issuing any notice, for their daily stock book. Here again he threw the onus on to them, and they accepted it, by agreeing that they did keep daily records (which the majority of manufacturers enter in stock books) but that these had been kept on sheets and destroyed, and all that could be then produced was a b