V. Bhargava, J.
1. The Tribunal has referred the following question for the opinion of this Court under Section 66(1) of the Income-tax Act:
'Whether on the facts and in the circumstances stated 9bove, a fresh notice under Section 28, (3) was necessary to be issued and the penalty proceedings are on that account null and void?'
2. The penalty proceedings arose out of proceedings for assessment of the assessee Anant Ram Kanhaiyala, Kanpur, for the assessment year 1944-45. After the assessee had' filed its return, a notice was given to it under Section 22 of the Income-tax Act. It was held by the Income-tax Officer that the assessee had failed to comply with this notice. -In addition, it was held by the Income-tax Officer that there had been deliberate suppression of certain profits by the assessee.
On these findings, the assessee was assessed under Section 23 (4) of the Income-tax Act on the 31st of August 1945. Before this assessment order was passed, a notice was issued to the assessee purporting to be under Section 28 (3) of the Income-tax Act asking it to show cause why a penalty should not be imposed. The assessee replied to this notice on the 24th of November 1945. In the meantime, on the 30th of September 1945, the assessee had moved an application under Section 27 of the Income-tax Act for cancellation of the assessment made under Section 23 (4) of the Act.
That application was allowed by the Income-tax officer on the 23rd of December 1947 on the finding that there had been no non-compliance of the notice issued under Section 22 (4) of the Income-tax Act. A fresh assessment was ordered. The fresh assessment was made under Section 23 (3) on the 31st of December 1947. Subsequently, in pursuance of the proceedings which 'had been started Tinder Section 28 on the 31st of August 1945, the Income-tax Officer on the 26th of August 1948 imposed a penalty on the assessee under Section 28 (1) (c) of the Income-tax Act,
The assessee appealed to the Appellate Assistant Commissioner who dismissed the appeal. There was a further appeal before the Tribunal which upheld the order of penalty though reduced the amount. Thereupon at the request of the assessee the question quoted above was referred by the Tribunal to this Court.
3. It-appears to us that the question as raised by the assessee, as decided by the Tribunal and as referred to this Court by the Tribunal does not arise as Section 28 (3) of the Income-tax Act. nowhere requires the issue of a notice to show cause against the imposition of a penalty. Section 28 (3) lays down that;
'No order shall be made under Sub-section (1) or Sub-section (2) unless the assessee or partner, as the case may be, has been heard, or has been given a reasonable opportunity of being heard.'
4. The practice of the Income-tax Department no doubt is that a printed notice is issued calling upon the assessee to submit his, explanation either in writing or in person when the Income-tax Officer proposes to impose a penalty under Section 28 (1) of the Act. Such a notice not being prescribed under any provision of law, no question can arise about the validity of such a notice or the fresh issue of such a notice in a case like the one before us. The only basis on which a penalty imposed can be challenged under Section 28 (3) of the Income-tax Act can be that the assessee was neither heard nor was he given a reasonable opportunity of being heard.
In the instant case, we find that at no stage was such a plea taken by the assessee. The order of the Income-tax Officer imposing the penalty makes no mention at all of any contention having beer. raised by the assessee at any stage that it had not been given a hearing before the imposition of the penalty or that it had not even been given an opportunity of being heard.
Even in the two appeals before the Appellate Assistant Commissioner and the Income-tax Appellate Tribunal no contention was raised that the penalty had been imposed on the assessee without its having been given an opportunity of being heard. Even the question referred to us does not raise this point.
It appears that the assessee from the very first stage proceeded on the basis that what the law required was the issue of a notice under Section 28 (3) of the Income-tax Act and that a notice, which had been issued prior to an assessment under Section 23 (4) of the Income-tax Act which was subsequently cancelled, could not be the basis for the imposition of a penalty after the cancellation, of the assessment. Such a question, as we have said above, ignores the provision made in Section 28 of the Income-tax Act.
5. The plea that the assessee had been given no opportunity of being heard as required by Section 28 (3) of the Income-tax Act would raise a question of fact. The plea not having been taken no finding on this question of fact was given by the Income-tax Appellate Tribunal Learned counsel's request that this court should call upon the Tribunal to state a case on the question whether a fresh opportunity of being heard had to be given to the assessee or not after the cancellation of the assessment which had been made under Section 23 (4) of the Income-tax Act cannot be granted as that question does not arise unless a finding of fact is first given by the Tribunal whether such an opportunity had or had not been given.
No finding was given because there was no plea. At this stage, this Court cannot ask for a finding on that question of fact and then frame a question of law if that question of fact happens to be answered in favour of the assessee.
6. Then only questions on which a statement of a case can be called upon by the Court are those which arise out of the appellate order of the Tribunal. The question cannot arise out of the appellate order of the Tribunal.
As the question of fact now sought to be raised was not raised before the Tribunal and, no finding was recorded on it, the question as framed has to. be answered against the assessee because no question arises for the issue of a fresh notice under Section 28 (3) of the Income-tax Act on the ground -that the previous assessment under Section 23 (4) of the Income-tax Act had been cancelled under Section 27 of the Act,
7. We consequently answer the question referred to us in the negative. The department willbe entitled to its costs from the assessee which wefix at Rs. 200/-.