JUDGMENT

Abdul Rashid, J. - This is an application under Section 66 (3), Income-tax Act, for a mandamus to compel the Commissioner of Income-tax, Punjab, to state the case of Rai Bahadur Banarsi Das, and refer the points of law arising therein to this Court. The following points of law have been formulated on behalf of the assessee: (1) Whether an Income-tax Officer is competent to review the order of his predecessor in office adjourning the case till the decision of the criminal litigation and start proceedings at his will without submitting the case to the Commissioner of Income-tax for revision of his predecessor's order under Section 33, Income-tax Act. (2) Whether attendance in a Criminal Court under orders of a Magistrate is a sufficient cause for non-appearance before the Income-tax Officer within the meaning of Section 27 of the Act. (3) Whether in the circumstances of the case the petitioner had reasonable opportunity to comply with the terms of the notices under Section 23 (2) of the Act or whether he was prevented by sufficient cause from complying with them. (4) Whether the consequences contemplated by Section 23 (4) would follow the non-compliance with the second notice under Section 22 (4) at least to the extent to which the Income-tax Officer was satisfied that it had been complied with, specially when the second notice does not specify the points on which the account books were required as contemplated by Section 23 (3) of the Act. (5) Whether in the circumstances of the case, the petitioner should be asked to produce the account books of the Kuldip Oil Mills, Lahore, which were not in. his possession at that time and income from which was not liable to be assessed in his hands in view of the provisions of Section 26 (2), Income-tax Act and whether its non-compliance would warrant an assessment under Section 23 (4) of the Act. (6) Whether when default in respect of notices under Section 22 (4) is not properly explained but the default of the notices under Section 23 (2) is satisfactorily accounted for, it is not the duty of the Income-tax authorities to cancel the 23 (4) assessment, re-issue the notice under Section 23 (2) and make the assessment afresh. (7) Whether the assessment made by an Income-tax Officer to the best of his judgment under Section 23(4) includes penal assessment. (8) Whether in the circumstances of the case when the petitioner had requested the Income-tax Officer for transfer of the case, was not the latter bound to grant some time for moving the Commissioner of Income-tax for that purpose if he was not prepared to forward the request of the petitioner to his superiors himself. The Commissioner of Income-tax has refused to refer the questions alluded to above. He has however taken action under Section 66 (1) of the Act and has propounded the following question of law for the opinion of this Court:

Whether as a matter of law it was not possible for the Income-tax Officer to find as fact that the assessee had failed to establish 'sufficient cause' or 'not reasonable opportunity' within the meaning of Section 27 of the Act.

2. The material facts of the case may be briefly stated. Rai Bahadur Lala Benarsi Das is a mill owner of Ambala. He carries on his business with an admitted capital of half a crore of rupees and his principal sources of income are Flour Mills, Oil Mills, Ice Factory, Banking and House property. He had paid no income-tax since 1925-26 and had accumulated 5 1/2 lacs of depreciation to be set off against future income. He submitted a return for the assessment year 1932-33 declaring a gross income of Rs 25,639 against which however Rs. 76,885 was claimed on account of depreciation. The Income-tax Officer issued a notice on 18th March 1933, under Section 22 (4) of the Act calling upon the assessee to produce complete accounts of his income from all sources during 1931-32. This notice was not served on the assessee, and another similar notice was therefore issued on 21st; March. In