JUDGMENT : MUKERJI, J.:— By an order of this Bench dated February 2, 1929 we directed that the matter in difference between the Judges composing this Bench might be referred to a single Judge or a Bench of three Judges. The Hon'ble the Chief Justice was pleased to appoint a Bench of three Judges. The matter was considered by the learned Judges to whom the matter in difference between us was referred. The learned Judges came to the conclusion that, in the circumstances of the case, the question referred to, namely, the question No. 1 of the nine questions referred to the High Court by the Commissioner of Income-tax, did not arise. This Bench thought that the learned Judges who expressed the opinion quoted above were not authorised under the provision of law under which the reference was made, to say that the question did not arise, This Bench accordingly addressed the learned Chief Justice again proposing that the said question No. 1 might again be referred to other Judges. The learned Chief Justice thereupon called a meeting of the Judges of the Court and the majority of the Judges decided that it was open to the three Judges, to whom the question had been referred, to say that the question did not at all arise and that such opinion would be binding on the division Bench which referred the question. 2. The matter was again placed before us. We have heard the counsel for the parties. Dr. Katju has argued that on the judgement delivered by the three learned Judges mentioned above, the answer to the question No. 9 as recorded by us previously should be reconsidered. He has argued, and in my opinion quite correctly, that question No. 9 and question No. 1 are not identical, The question No. 1 is, Has an Income-tax Officer jurisdiction to issue a notice under Section 22(4) after the commencement of enquiry under Section 23(3)? The question No. 9 runs as follows, In the circumstances of Thai case, was the assessment rightly made tinder Section 23(4)? 3. Question No. 1 is a pure question of law and on this point my brother Niamatullah, J. and I are at a difference. Dr. The question No. 9 runs as follows, In the circumstances of Thai case, was the assessment rightly made tinder Section 23(4)? 3. Question No. 1 is a pure question of law and on this point my brother Niamatullah, J. and I are at a difference. Dr. Katju argues that in spite of this difference, we ought to say in answer to question No. 9 that having regard to the facts of the present case, the assessment was not rightly made under Section 23(4). Let us examine the contention of Dr. Katju. He has pointed out that when the Income-tax Officer at Cawnpore started his enquiry, he asked for the account books from all the places of business from the assessee, namely, from Cawnpore, from Bombay and from Calcutta. The Bombay and Cawnpore accounts were produced but the Calcutta accounts were not produced before the Officer at Cawnpore. The Income-tax Officer at Cawnpore issued a notice, on August 11, 1927, which was a combined notice under Section 23(2) and 22(4) of the Income-tax Act, to produce the Calcutta accounts on August 15. To this order the assessees demurred and requested the Income-tax Officer at Cawnpore not to press his order but to allow them to produce their accounts before the Income-tax Officer at Calcutta. To this request the Officer at Cawnpore acceded. He wrote to the Officer in Calcutta as follows:— It is therefore the Calcutta shop account which is the most important. I would request you to examine these books again and obtain copies……. I would have taken all this trouble on myself, but the assessee is unwilling to show the Calcutta shop accounts to me. The case is important and requires your personal attention. I have fixed the case for March 6, 1928, and shall be extremely obliged to have your reply before that date. 4. This letter was written as late as on February 24, 1928 and evidently after some other correspondence had passed. Dr. Katju urges, and in my opinion rightly, that by agreeing to accept the report of the Income-tax Officer, Calcutta, provided the same was satisfactory, the Officer in Cawnpore, waived, so to say, the effect of his order dated August 11, 1927. That order, argues Dr. Dr. Katju urges, and in my opinion rightly, that by agreeing to accept the report of the Income-tax Officer, Calcutta, provided the same was satisfactory, the Officer in Cawnpore, waived, so to say, the effect of his order dated August 11, 1927. That order, argues Dr. Katju, could not be revived after seven months in March, 1928 and could not be made the basis of an order under Section 23, Rule 4 of the Income-tax Act, namely, an assessment to the best of the judgment. 5. It will be remembered that there were two notices issued against the assessees, both purporting to be combined notices under Section 22(4) and Section 23(3), one was dated August 11, 1927 and the other was dated February 22, 1928. It was on account of the failure to comply with both these notices, that the Income-tax Officer purported to act under Section 23(4) of the Income-tax Act. When the assessees questioned the propriety of this assessment “to the best of judgment”, they questioned the validity of the notice of February 22, 1928; see point (a) at page 3 of the statement of the case. The learned Commissioner is required by law to give his own opinion on the points referred to the High Court for its opinion. In answering the question No. 9 (see page 8 of the statement of the case) the learned Commissioner did not rely on the notice issued on February 22, 1928 but relied on the notice of August 11, 1927 only. For this reason the Bench consisting of three learned Judges of this Court expressed the opinion that the notice of February 22, 1928 might very well be ignored. The learned Judges then considered the circumstances under which the notice of August 11, 1928 had been issued and came to the conclusion that it had been issued before any enquiry was started. From this finding of fact it followed that the question of law on which there was a difference of opinion between myself and my learned brother did not arise. Dr. Katju has argued that if we are bound by the opinion of those three learned Judges, as the majority of the Judges of the Court have held in an English meeting, we must ignore the notice of February 22, 1928, as being a document of no relevancy in the case. 6. Dr. Katju has argued that if we are bound by the opinion of those three learned Judges, as the majority of the Judges of the Court have held in an English meeting, we must ignore the notice of February 22, 1928, as being a document of no relevancy in the case. 6. In my opinion, this view contended for ought to be accepted and for the reasons already given. Further, however, there is good reason why the notice of February 22, 1928 should be ignored as waived or as being never intended to be operative. I have already pointed out that the letter addressed by the Income-tax Officer of Cawnpore to the Income-tax Officer at Calcutta is dated February 24, 1928 and was therefore written two days after the notice dated February 22, 1928 had been issued. From the portion of the letter quoted above it will be seen that the Income-tax Officer at Cawnpore was perfectly willing to accept the report of the Calcutta Officer and it was not his intention to enforce either the notice of August 11, 1927 or that of February 22, 1928. 7. Whether we accept the opinion of the Full Bench or whether we decide on our own initiative, there can be no doubt that both the combined notices had been waived, so to say, and it would be extremely unfair on the part of the Income-tax Officer to turn round and say, without giving the assessees a fresh opportunity to produce the books, that their failure on previous occasions to produce accounts subjected them to the penalty of having a best judgment assessment made against them. 8. In view of this fresh argument and in view of the opinion expressed by the Full Bench I am clearly of opinion that the answer to question No. 9 should be in the negative. 9. I may point out that this answer entirely makes it unnecessary to return any answer to question No. 1 and, as already stated in the opinion of the Full Bench, the question No. 1 does not arise. 10. I would therefore direct that, in substitution of my answer to question No. 9 as recorded on February 22, 1928, the detailed answer which is also in the negative recorded above be returned to the Commissioner of Income-tax. 11. I note that Mr. 10. I would therefore direct that, in substitution of my answer to question No. 9 as recorded on February 22, 1928, the detailed answer which is also in the negative recorded above be returned to the Commissioner of Income-tax. 11. I note that Mr. Bajpai, the learned Government Advocate, has argued in Court for 4½ days and that he is entitled to a fee of Rs. 1,100. He should get this fee from the Government, As regards the costs of this reference, I would direct that the Government should pay the costs of the assessees. NIAMATULLAH, J.:— In my order of February 22, 1929, I answered the question No. 9 in the affirmative, because, in my view, disregard of a notice under Section 23(2) of the Income-tax Act entitles the Income-tax Officer to proceed under Section 23(4) and if he does so, the assessee has no right of appeal. Whether the Income-tax Officer could do so under the circumstances of the present case depended on the effect of two notices issued by him (1) on August 11, 1927 and (2) on February 22, 1928. It had been contended on behalf of the assessees that the first notice had been waived. I did not deal with this argument, because if it be accepted with regard to the first, the second notice, which in my opinion cannot be said to have been waived as the result of a letter, dated February 24, 1928, could not be got over. I would have respectfully differed from my learned colleague on this part of the case, had the question been open to discussion; but the view taken by the Full Bench as regards the second notice relieves me of the responsibility of dealing with it. The Full Bench have placed their own construction on the statement of facts submitted by the Income-tax Commissioner, according to which the effect of the notice, dated February 22, 1928, is not to the considered. They observed, after considering the statement of the case, that it does not appear, however, that we have to consider the effect of the notice on February 22, 1928, at all. 12. They observed, after considering the statement of the case, that it does not appear, however, that we have to consider the effect of the notice on February 22, 1928, at all. 12. As regards the first notice, they ruled that it was issued before the commencement of the enquiry, in which case, according to the view both of my brother Mukerji, J. and myself, the Income tax Officer had jurisdiction to proceed under Section 23(4), unless he is otherwise debarred from taking that course. On receipt of the finding of the Full Bench, the assessees pressed for the consideration of the question that the first notice (of August 11, 1927) had been waived. The second notice (of February 22, 1928) being ignored, as we must ignore in view of the ruling of the Full Bench, I must now consider the effect of the former. I have had the advantage of reading the judgment of my learned colleague, and find myself in agreement with him in holding that, under the circumstances of the case stated by him, it was waived with the result that it loses its legal effect altogether. 13. In accordance with the views expressed by the Full Bench and for the reasons stated above, I have to answer question No. 9 in the negative, which I accordingly do. 14. By the Court.—Let the following answers to the questions put by the Commissioner of Income-tax be returned as the answers of the Court. Along with the answers will be sent copies of all the judgments of the Judges forming this Bench and the Judges forming the Bench to which the question No. 1 was referred for an answer. 15. Question No. 1—In the view expressed by the Bench of three Judges, this question does not arise. 16. Question No. 2—Answer, No 17. Question No. 3(a)—Answer, No 18. Question No. 5(b)—Answer, No 19. Question No. 4—Answer, No 20. Question No. 5—Answer, Yes 21. Question No. 6—Answer, Yes 22. Question No. 7—Answer, Yes 23. Question No. 8—Answer, No Question No. 9—Answer, No 24. With reference to the costs we declare that the Government Advocate having worked for more than four days is entitled to a fee of Rs. 1,100. As the assessee has substantially succeeded in the reference, we direct that he shall get his costs from the opposite party.