Sabyasachi Mukharji, J.
1. This appeal relates to the assessment for income-tax for the assessment year 1950-51. On March 28, 1956, return for the said year was filed by the assessee showing an income of Rs. 3,148. Thereafter, on April 9, 1956, a revised return was filed showing an income of Rs. 3,421. On March 17, 1959, a notice under Section 34(1)(a) of the Indian Income-tax Act, 1922, was served on the assessee. On July 16, 1959, the assessee filed the return pursuant to the aforesaid notice under Section 34(1)(a).
The impugned assessment in question was completed on January 29, 1960. The assessment was under Section 23(4)/34(1)(a) of the Indian Income-tax Act, 1922. It appears that prior thereto there had been notice issued under Section 23(2) of the Indian Income-tax Act, 1922, and notice had also been issued under Section 37 of the said Act. As the question relates to the legality of the assessment it would be necessary to set out the relevant portion from the assessment order :
'Notice under Section 34(1)(a) was issued with the approval of the Commissioner of Income-tax, Calcutta, and served upon the assessee. The assessee made compliance by furnishing a return. Notice under Section 23(2) was issued. Sri G. Chatterjee, A.R. of the assessee, appeared and explained the return. The assessee is a partner of Babulal Mohanlal, Morar, Gwalior, and his share of profit of the firm as per allocation is Rs. 8,883. It appears from the share allocation report that the assessee received interest amounting to Rs. 6,333 and the A.R. of the assessee was asked to explain the amount on which interest was received by the assessee. Sri G. Chatterjee explains that the assessee has got no capital in the firm's account and he was asked to produce the books of accounts of the firm to prove the genuineness of the claim but he failed. In the absence of books of account produced, I cannot accept the claim of the assessee and having calculated interest at 6% it is noticed that the capital invested by assessee in the firm amounts to Rs. 1,05,550. As the assessee has failed to produce any evidence, it is not possible to ascertain on my part the date or dates on which the sum was invested. The assessee could not give evidence to show that he preferred an appeal against the share allocation order and as the share allocation report has come to me, it is not possible on my part to disturb that allocation, and I must presume that the assessee has received interest on his capital in the absence of accounts and the certified copies of the capital account of all the partners of the firm. It is so, when the assessee did not prefer an appeal against the share allocation order of the firm. The assessee was also called under Section 37 but he made no compliance though several opportunities were given to the assessee.'
After setting out the aforesaid fact the Income-tax Officer went on to observe that on the basis of the share allocation report including the amount of capital on which interest had been credited to the extent of Rs. 4,303, with the firm, the capital allocation came to Rs. 1,05,550. As the assessee's authorised representative could not say the dates on which the capital was invested in the firm, the Income-tax Officer -allowed an initial capital of Rs. 25,550 and the balance of Rs. 80,000 was added as income of the assessee, as income from undisclosed sources. The total income was thus computed at Rs. 89,695. The assessee, by an applicationunder Article 226 of the Constitution, on July 8, 1960, challenged the aforesaid assessment and obtained a rule nisi. The rule nisi ultimately came up for hearing before T. K. Basu J. and by the judgment delivered and order passed on March 10, 1969, the learned judge has quashed the said assessment order giving the revenue authorities liberty to proceed afresh in accordance with law. This appeal arises out of the aforesaid judgment of T. K. Basu J. dated March 10, 1969.
2. The main question with which we are concerned in this appeal is whether the Income-tax Officer in making the assessment under Section 23(4) of the Indian Income-tax Act, 1922, had acted without jurisdiction. In this connection it would be necessary to refer to the relevant provisions of the Act. Section 22 deals with the return of income and subsection (4) of Section 22 provides as follows :
' (4) The Income-tax Officer may serve on any person who has made a return under Sub-section (1) or upon whom a notice has been served under Sub-section (2) a notice requiring him, on a date to be therein specified, to produce, or cause to be produced, such accounts or documents as the Income-tax Officer may require, or to furnish in writing and verified in the prescribed manner information in such form and on such points or matters (including, with the previous approval of the Commissioner, a statement of all assets and liabilities not included in the accounts) as the Income-tax Officer may require for the purposes of this section ;
Provided that the Income-tax Officer shall not require the production of any accounts relating to a period more than three years prior to the previous year.'
Section 23 deals with the procedure to be followed in the assessment. Subsection (1) provides that if the Income-tax Officer is satisfied without production of any evidence or document by the assessee or without thepresence of the assessee that the return filed is correct and complete thenthe Income-tax Officer shall make assessment upon the basis of that return. Sub-section (2) deals with cases where the Income-tax Officer is notsatisfied without either requiring the presence of the person who madethe return or the production of evidence that the return made under Section 22 is correct or complete, he shall serve a notice requiring him on adate to be specified in the notice either to attend at the Income-tax Officer'soffice or to produce or cause to be produced any evidence on which suchperson might rely in support of the return. Sub-section (3) of Section 23deals with the manner in which the Income-tax Officer shall make assessment. Sub-section (4) of Section 23, with which we are immediately concerned in this appeal, provides as follows :
' (4) If any person fails to make the return required by any notice given under Sub-section (2) of Section 22 and has not made a return or arevised return under Sub-section (3) of the same section or fails to comply with all the terms of a notice issued under Sub-section (4) of the same section or, having made a return, fails to comply with all the terms of a notice issued under Sub-section (2) of this section, the Income-tax Officer shall make the assessment to the best of his judgment and determine the sum payable by the assessee on the basis of such assessment and, in the case of a firm, may refuse to register it or may cancel its registration if it is already registered :
Provided that the registration of a firm shall not be cancelled until fourteen days have elapsed from the issue of a notice by the Income-tax Officer to the firm intimating his intention to cancel its registration.'
3. Therefore, it appears that under the scheme of the Act the Income-tax Officer has, apart from Section 37, power to require production of books or documents or evidence in making the assessment. Under Sub-section (4) of Section 22 the Income-tax Officer might require certain information and evidence in connection with the pending assessment before him, but the information and the documents that he is empowered to require must be specified in the notice given by him under Sub-section (4) of Section 22. Sub-section (2) of Section 23, on the other hand, gives the Income-tax Officer the right to require an assessee, in cases where the Income-tax Officer is not satisfied without the assistance or presence of the assessee to produce such evidence as the assessee might rely in support of the return, and normally in those cases where the assessee complies with the notice and furnishes evidence Sub-section (3) provides for the manner in which the Income-tax Officer is enjoined to complete the assessment in accordance with law. Sub-section (4) of Section 23 deals with cases which authorise the Income-tax Officer to make a best judgment assessment. The specified cases in which Sub-section (4) authorises the Income-tax Officer to make the best judgment assessment are as follows :
(a) If a person fails to make a return ; or
(b) fails to comply with the terms of the notice under. Sub-section (4) of Section 22 ; or
(c) fails to produce documents in support of the return on which he relies after notice has been given under Sub-section (2) of Section 23.
4. In the aforesaid three circumstances the Income-tax Officer is enjoined to make best judgment assessment. In the instant case, the question is whether any of these three different situations contemplated by Sub-section (4) of Section 23 has happened in order to justify assessment under Sub-section (4) by the Income-tax Officer. Counsel for the revenue contended that in this case there was a failure to comply with the notice under Sub-section (2) of Section 23. It was urged that notice under Sub-section (2) of Section 23 has been given. That fact is undisputed. It also is apparentthat the assessee did not, it was urged, produce any document or evidence or books of account of the firm to prove the genuineness of the claim made by the assessee in its return. Therefore, it was urged that the assessee had failed to comply with the terms of the notice under Sub-section (2) of Section 23 of the Act. We have noted Sub-section (2) of Section 23. It empowers the Income-tax Officer, in cases where he is not satisfied with the return without the presence of the assessee or books or evidence by the assessee in support of the return, to call upon the assessee to produce or cause to be produced any evidence on which such person might rely in support of the return. Therefore, in order to commit the default under Sub-section (2) of Section 23, it is necessary that there must be a failure to produce books or documents or evidence on which the assessee relies in support of the return. The question, therefore, in this case is, has the assessee relied on any document or evidence in support of the return in the instant case. It is true that from the order as mentioned hereinbefore it is clear that the assessee did not produce any evidence in support of the return, but the question is whether the assessee relied on any document or any evidence in support of the return. If an assessee is not relying on any evidence or document in support of the return and as such fails to produce any such document or evidence it cannot be said that there was a failure on the part of the assessee to produce evidence in support of the return on which he relies. The assessee in the instant case was not relying on any evidence, at least the Income-tax Officer has not found so. If that is the position, in such a case on the failure of the assessee to produce any document or evidence, upon which he does not seek to rely, the best judgment assessment under Sub-section (4) of Section 23 cannot be made. It is true that in this case, admittedly, there was failure under Section 37 of the Act. Section 37 of the Act empowers an Income-tax Officer to call upon the assessee to give evidence and to produce documents but failure to comply with Section 37 does not authorise, under Sub-section (4) of Section 23, the Income-tax Officer to make a best judgment assessment. In the aforesaid view of the patter it must, therefore, be held that the assessment order was wrong and in violation of the provisions of Sub-section (4) of Section 23. But the next question is whether in such a case the assessee is entitled to move this count under Article 226 of the Constitution without resorting to the remedies provided within the Indian Income-tax Act, 1922. Under Section 27 of the Indian Income-tax Act, 1922, there is scope for application before the Income-tax Officer for reopening the best judgment assessment; there is also provision for appeal under Section .33 against the aforesaid order. But in this case the learned trial judge has proceeded on the basis that the assumption of jurisdiction by the Income-tax Officer to make the best judgment assessment under Sub-section (4) of Section 23 was on anerroneous basis and as such without jurisdiction. Therefore, the petitioner was entitled to resort to an application under Article 226 of the Constitution. In this connection reliance was placed on several decisions, viz., R. v. Shoreditch Assessment Committee  2 KB 859 , Ujjam Bai v. State of Uttar Pradesh AIR 1962 SC 1621 and White & Collins v. Minister of Health  2 KB 838 ;  3 All ER 548. It appears that in another application in the case of Mohini Debi Malpani v. Income-tax Officer : 77ITR674(Cal) the learned judge had taken a similar view. The aforesaid judgment of the learned judge in the said Matter No. 151 of 1965 came up in appeal before a Division Bench of this court and by a judgment delivered on the 8th of August, 1973, in Appeal No. 115 of 1971 the decision of the learned judge has been affirmed. In this case there is another controversy as to whether the assessment order had been served on the assessee. The assessment order in question was passed on the 29th of January, 1960; there is some controversy as to whether the demand notice and the assessment order had been served on the assessee. According to the assessee the demand notice had not been served; according to the department such demand notice and the assessment order had been served. The assessee states that the assessee made an application for certified copy in 1966 when the assessee came to know of this impugned assessment in connection with some other proceedings before the Income-tax Officer and thereafter moved this court. Having regard to this state of controversy and having regard to the fact that if the assessment had been made in 1960 the appear would have become barred in 1966, when the assessee came to know of the same and in view of the fact that in a similar matter such application was entertained by this court and affirmed by the Division Bench we think that though there might be alternative remedy within the Act yet this will not deter this court from entertaining an application under Article 226 of the Constitution in exercise of its discretion. The learned judge having exercised his discretion, in view of the facts and circumstances mentioned before, we should not interfere with that exercise of discretion.
5. In the aforesaid view of the matter this appeal fails and is accordingly dismissed. There will be no order as to costs.
6. This order, however, will not prevent the revenue authority frommaking any assessment in accordance with law. Counsel for the assesseealso conceded that there was no question of limitation in making theassessment pursuant to the notice under Section 34 of the Act, which, asmentioned above, has not been set aside.
7. I agree.