M.C. Chagla, C.J.
1. In this case the assessee was served with a notice under Section 22(2) for the assessment year 1939-40 on July 18, 1939, and a notice under Section 22(4) for production of books was served on him on January 6, 1941. With regard to the production of books, extension of time was granted to him until February 25, 1941, when some books were produced but other books were not produced. That assessment was completed on September 22, 1943. For the assessment year 1940-41 notice under Section 22(2) was served on July 20, 1940, and notice under Section 22(4) was issued on February 11, 1941. No books were produced. Assessment was completed on September 22, 1943. For the assessment year 1941-42 a notice under Section 22(2) was served on June 6, 1941, and notice under Section 22(4) was served for production of books on August 11, 1948, Time was extended till August 31, 1943. The assessment was completed on September 22, 1943. Then the assessee applied to the Income-tax Officer under Section 27 to set aside these assessments, but, the Income-tax Officer declined to do so, and the Appellate Assistant Commissioner on appeal agreed with the Income-tax Officer. Then the matter went before the Appellate Tribunal, and for the first time a point was urged by the assessee that inasmuch as the notice issued under Section 22(2) and Section 22(4) was invalid, further time should have been given to him and that there was sufficient cause for his not producing the books when called upon to do so.
2. It is perfectly true that when the three assessments were made, the notices that were issued under Section 22(2) or 22(4) were in the eye of the law bad notices, but Ordinance XLV of 1944 which was promulgated on October 3, 1944, validated all these notices. The question that arises is whether notwithstanding the validation of these notices, the fact that at the time when the notices were issued they were invalid constituted sufficient cause within the meaning of Section 27 which prevented the assessee from complying with the notices under Section 22(4).
3. It has got to be remembered that under Section 27 it is for the assessee to show cause and it is for the Income-tax Officer to be satisfied that the cause shown is a sufficient cause. It was never suggested by the assessee before the Income-tax Officer, or before the Assistant Appellate Commissioner, or, even as a matter of fact, before the Appellate Tribunal that the reason why he could not comply with the notices under Section 22(4) was that he thought those notices were bad in law and he was under no obligation to produce the books. The cause which he showed before the Income-tax Officer and the Appellate Assistant Commissioner was an entirely different cause and that cause was found insufficient by both those officers. It was only before the Tribunal that this point was urged, not on the ground that the supposed invalidity of the notice weighed upon the mind of the assessee and prevented him from complying with the notice, but purely as a matter of law that inasmuch as the notices were invalid at the time when they were issued, their validation subsequently did not prevent the assessee from putting forward the case of sufficient cause under Section 27. We fail to see how a question of law in this form can arise with regard to the sufficiency of cause shewn by the assessee. There must be found as a fact that a particular cause operated upon the mind of the assessee which prevented him from complying with the notice. That is a pure question of fact. The sufficiency of it may be a question of law, but in this case the very basic fact is absent, viz. that the invalidity of the notice did operate upon the mind of the assessee and thereby prevented him from complying with the notice. Therefore, in my opinion, the Tribunal was not right in coming to the conclusion that the assessee was prevented by sufficient cause from complying with the notice.
4. Mr. Seervai has relied on two authorities as supporting his contentions. In my opinion neither of the two cases really helps him. The first is a judgment of Sir John Beaumont reported in Govindram Seksaria v. Commissioner of Income-tax (Central) Bombay (1942) 45 Bom. L.R. 168. In that case notice under Section 22(2) and Section 22(4) was issued by the Income-tax Officer, Special Circle, instead of the Income-tax Officer having jurisdiction in the particular locality, and his jurisdiction to issue notice was challenged by the assessees. Then an attempt was made by the assessees to set aside the assessment under Section 27 on the ground that they were prevented from complying with the terms of the notice by sufficient cause. Sir John Beaumont held that the notice that was issued was bad inasmuch as the Officer who issued it had no jurisdiction, and he also came to the conclusion that there was sufficient cause preventing the asseessees from complying with the terms of the notice. In this ease also an Ordinance was issued validating the notice. The Ordinance was issued on January 3, 1940, and Sir John Beaumont held that up to December 30 the assessees were entitled to refuse to produce their books to an officer who had no right to assess the tax. But the important thing to bear in mind is this that the assessees were conscious of the fact that the officer who had issued notices had no jurisdiction. They had asserted their right not to be assessed by that officer and they had challenged his jurisdiction. So all these facts had weighed with them when they refused to produce the books and on that Sir John Beaumont held that, although the Ordinance subsequently validated the notice, till the validation the assessees had sufficient cause for not producing the books. The facts before us, as I have pointed, are entirely different. At no stage and at no time was it suggested by the assessee that he was under the impression that the notice issued under Section 22(2) or Section 22(4) was an invalid notice.
5. The other case relied upon is Commissioner of Income-tax v. Ekba1 & Co. (1944) 47 Bom. L.R. 181. There Sir Leonard Stone and Mr. Justice Kania held that notice under Section 22(2) was not a valid notice as it did not allow the assessee the time for making the assessment which was required under the law. The point as to the validity of the notice was not taken by the assesee either before the Income-tax Officer or the Appellate Assistant Commissioner and it was taken for the first time before the Tribunal. Notwithstanding this both the learned Chief Justice and Mr. Justice Kania came to the conclusion that the assessee was entitled to have the assessment set aside. From this Mr. Seervai argues that although the assessee did not put forward the contention with regard to the invalidity of the notice either before the Income-tax Officer or the Appellate Assistant Commissioner, he is still entitled to take the point as it is a point of law. It is perfectly patent that if there is a factor which goes to vitiate the notice or to render it invalid or illegal, such a point can be taken at any stage and there would not be anything like an estoppel operating against the assessee. But here we arc not concerned with the invalidity of the notice. The whole reference proceeds on the assumption that the notice has been rendered valid and it must be deemed to be valid at all times. The only question we have got to consider is whether the particular cause on which Mr. Seervai is relying was a cause which in fact prevented the assessee from complying with the notice under Section 22(4), and, as I have said, as that cause was never suggested, the assessee must fail to have his assessment set aside under Section 27. We, therefore, answer the question in the negative. The assessee to pay the costs.