JUDGMENT

Mukerji, J. - This is a reference u/s 88, Civil Procedure Code, made by a Division Bench of this Court in a matter arising under the Income Tax Act of 1922. Notice was served on Lachhman Das Babu Earn a firm with their headquarters at Cawnpore and branches in other places, u/s 22(2), Income Tax Act, to make a return of their income. After certain proceedings, which it is unnecessary to detail, a combined notice was sent to the firm on 11th August, 1917, in the form known as form B, drafted apparently under the authority of the Board of Revenue but not incorporated in any way in the Income Tax Act. This so-called combined notice purports to be a notice u/s 22(4) and also u/s 23(2) of the Act. The nature of the notice that can be issued under these sections is clear on the face of the sections themselves and we need not detail it.

2. After many postponements and the receipt of many reports and the examination of certain accounts, next on 22nd February, 1928, the Income Tax Officer felt that he had reason to ask for further particulars in regard to the purchase of a house, and issued what we are told was a notice u/s 23(3) asking for particulars in regard to this house. In the statement of the case made by the Income Tax Officer this notice is referred to as having been one u/s 23(2), but that is apparently a misprint, and this notice of 22nd February 1928, was presumably a notice asking for evidence on "specified points" in accordance with Sub-section (3) Section 23. On the same date 22nd February, he issued another notice u/s 22(4) calling for certain Cawnpore headquarters accounts. On 14th March 1928, one Sheo Nath was examined on oath, and this appears, to be the only occasion on which any "evidence" was heard. On 30th March, after certain reports had been received, the Income Tax Officer asked for further accounts. The representative of the firm asked for a further reference to the Calcutta branch, but this was refused as the day, 30th March, was the last day but one for the close of the financial year, and the Income Tax Officer proceeded to a summary assessment, purporting to act u/s 23(4). Upon the assessee appealing to the Assistant Commissioner it was held that no light of appeal owing to the fact that the assessment had been made and properly made u/s 23(4). The assessee thereupon required the Income Tax Officer to refer the case to this Court on certain points stated. A number of those points came up for consideration before a Bench of this Court consisting of Mukerji, J., and Niamatullah, J. On one point the learned Judges have differed, and the matter has come up before the present Bench of three Judges on the reference. The point referred to us is stated by the learned Judges as follows:

Has an Income Tax Officer jurisdiction to Issue a notice u/s 22(4) after the commencement of an inquiry u/s 23(3).

3. We have had some difficulty in ascertaining the facts on the basis of which we are asked to decide this question. The following appears in the statement of the Income Tax Officer at p. 3:

The assessees now desire that I should make a reference to the Honourable High Court on the following points of law (Appendix B)(as propounded by them:)

(a) Whether the notice issued u/s 22(4) on 22nd February 1928, was legally valid inasmuch as, it was issued after the commencement of proceedings u/s 23(3), late.

4. It does not appear, however, that we have to consider the effect of the notice on 22nd February, 1928, at all. The notice u/s 22(4), which we have really to consider, is referred to at p. 8 of the Income tax Officer's statement, at para. 20, point 9. It is referred to us as follows:

The assessees clearly failed to comply with the notice u/s 22 (4), issued on 11th August, 1927, calling for the production of their Calcutta accounts. This default justifies the assessment u/s 23(4).

5. The Assistant Commissioner also said in his order dated 15th June, 1928, which is printed as Appendix D to the Income Tax Officer's stateme