Kumarasami Sastri, J.
1. This is an application under the Specific Relief Act and the Income Tax Act for an order directing the Commissioner of Income Tax to refer to the High Court the following points.
2. Whether on the facts stated in the accompanying affidavit of the petitioner's munim there is, 'sufficient cause,' with in the meaning of Section 27 of the Income Tax Act of 1912.
3. Whether it was open to the Commissioner to arrive at a finding of wilful default in the absence of any evidence and whether there is evidence in this case on which such a finding can be recorded.
4. Whether it is open to the Commissioner to take into consideration the previous adjournments which were granted by the Income Tax Officer (Collector of Godavari), to canvass the adequacy of the reasons for such adjournments and to base a finding of wilful default as regards the final due date 1st February 1923, on such considerations or whether he should confine the consideration of 'sufficient cause' to the final due date.
5. Why the Commissioner of Income Tax should not be directed to review the assessment of super-tax, under Section 35, Income Tax Act, through the Income Tax Officer, Godavari.
6. The petitioner was directed under Section 23(2) of the Income Tax Act to produce his accounts in support of his Income-Tax return. He got two extensions of time, and the last extension of time gave the petitioner time till the 1st February 1923, for this purpose. It is alleged, and there is nothing to the contrary on record that the grandson of the petitioner who came to Rajahmundry before the 1st February was taken ill with enteric pneumonia and died on the 28th February 1923. The medical certificate produced supports this statement, and this fact is not disbelieved by any of the Income Tax Officers. On the 3rd March 1923 soon after the funerals were over, the petitioner presented an application to the Income Tax Officer to excuse the delay in the production of the accounts and although the order of assessment was not served, his application was refused, and he received a notice of demand, on the 7th March 1923, stating that he was assessed at Rs. 15,276-1-0, on an estimated income of Rs. 71,500. The assessment of the previous years was only on an annual income of Rs. 2,800 so that there can be little doubt that this enormous assessment effected was due to his not having produced his accounts in time. His application, when he received notice of assessment for cancellation of the ex parte assessment and to levy one after looking into his accounts, was refused. On this an appeal was preferred to the Commissioner of Income Tax, who directed the Income Tax Officer to restore the petition to the rile and dispose of it on its merits. The Income Tax Officer on remand declined to re-open the assessment and he was of opinion that the plea of the illness of the petitioner's grandson was merely an excuse. An appeal was preferred against this to the Income Tax Commissioner but he declined to interfere and confirmed the assessment.
7. It is alleged before me that the Income Tax Commissioner and the Collector of Income Tax were wrong in their construction of the words 'sufficient cause' in Section 27 of the Income Tax Act and that they should have been guided by those considerations which should guide Courts in construing the words 'sufficient cause' in the Civ. P.C. and should have borne in mind the principles set out in Arunachala Aiyar v. Sub-baramiah : AIR1923Mad63 where the words 'sufficient cause' have been explained. It is also alleged that as the income assessed on, was only Rs. 71,000 and odd, the basis of super-tax should have been taken as not applicable, the trade being a Hindu joint family trade. On these contentions it is stated that a case ought to have been stated to the High Court.
8. I may say at the outset that I think the officers in this case have been very unsympathetic. The facts have not been found against, namely, that before the 1st February the petitioner's grandson was seriously ill of typhoid fever, and pneumonia and that he died. It is also not found against that he had no proper help during this period and I find it difficult to understand the remark, of the Income Tax Officer that the plea of the illness of the petitioner's grandson was merely an excuse. It is extremely unlikely that the death of a grandson will be used by any Hindu as a pretext. If I were sitting as a Court of Appeal or Revision I would have no hesitation in characterising the proceedings as extremely harsh and the assumption baseless and in remanding the case for disposal on the merits. But the question is whether acting under Section 45 of the Specific Relief Act I can find that any case has to be stated. What 'sufficient cause' it is a question to be determined by the officer who has to deal with the application for setting aside the ex parte assessment and disposing the matter on an inspection of the account-books. Where on the facts, about which there was no dispute, that officer thinks that sufficient cause has not been shown, it is difficult to see how the issue of an order directing him to refer the question as to what the meaning of 'sufficient cause,' is would help the petitioner. All that the High Court can do would be to state the law as set out in Arunachala Iyer v. Subramiah : AIR1923Mad63 and still the question would be left to the Income Tax Officer to decide whether on these facts the petitioner has offered sufficient excuse for not appearing in time. There is really, therefore, no question of law. There is no construction of any section of the Income Tax Act which the High Court can say has been erroneous. It relates merely to the exercise of a discretion vested in the Income Tax Officer; and the High Court has no powers of appeal or revision over the Income Tax Officer. I really do not see what benefit would be gained by the High Court calling the attention of the Income Tax Officer to the law as to the sufficiency of cause enunciated in Arunachala Iyer v. Subramiah : AIR1923Mad63 It will still be open to the Income Tax Officer to say that having regard to all the facts he is still of opinion that the assessee ought to have sent up his accounts and that he should have left the boy to take care of himself [and that the illness of the boy was not sufficient to excuse his not obeying the directions of the Income Tax Officer as to the submission of accounts. As I said before, it may be extremely harsh, but at the same time it is difficult to see how the High Court can interfere.
9. The next point is as regards the joint family minimum. Here again there has been no evidence and no accounts produced before the Income Tax Officer which would show that the assessee was a joint family. It is argued that the power-of-attorney which was filed by the agent stated that it was a joint family, but a statement in a power-of-attorney would not prove itself. It will be like any other statement made by a person. Moreover all that the power-of-attorney can show is that A was the agent of B, but any collateral statement in it would not prove itself nor can it be acted upon without more. It was, therefore, open to the Commissioner to say that there was nothing before him which would bring the case within the provisions of the Income Tax Act whereby the minimum has to be Rs. 75,000. I do not think, therefore, any useful purpose would be served by directing a reference.
10. But I must say that having regard to the facts of the case it would be just and equitable that this matter should, if possible, bere-considered by the proper authorities and that the assessee, who was assessed only on an income of Rs. 2,800, in the previous year, which would make him liable only for Rs. 72, ought not, owing to his failure to produce his accounts within time which he has explained, be assessed to income tax of Rs. 15,000 and odd the next year, especially when he is prepared to offer his account-books for inspection and pay all the expenses of inspection. It cannot be said that trade revived so much in the year under question as to raise any fair presumption. So far as Madras is concerned the complaint has been that trade has been; very dull and I had numerous applications for extending time for payments. Very probably the state of things in the mofussil has not been better. This is a matter, I think, where there has been an injustice to the petitioner which I am sorry I cannot remedy by proceedigs under Section 45 of the Specific Relief Act. I must also say that there is very little foundation for the assumption of the Income Tax Officer that the illness and death of the grandson of the petitioner is only an excuse or that he deliberately withheld his accounts with the object of misleading the Income Tax Officers into levying a light assessment.