HEGDE J.--The question of law arising for decision in this case is fully covered by the decision of this court in State of Assam v. Deva Prasad Barua.

The appellants in the cases are the owners of a tea estate. The assessment with which we are concerned herein is of the assessment year 1955-56. In that year the assessees did not file their return in response to the general notice under section 19(1) of the Assam Agricultural Income-tax Act, 1939 (hereinafter referred to as "the Act"). Thereafter, in the year 1961, the Agricultural Income-tax Officer asked the assessee to submit its return for the assessment years 1955-56 to 1961-62. But, the assessees did not submit any return. It appears that in February, 1962, the Income-tax Officer again called upon the assessee to submit their returns for the assessment years in question. In response to that demand the assessees submitted their return for the assessment year 1955-56 on March 5, 1962. The Income-tax Officer assessed the income of the assessees on the basis of the said return. The assessees challenged the validity of that assessment on the ground that the same was barred by limitation. Their contention was not upheld either by the Income-tax Officer or by the appellate authority. Thereafter, the assessees challenged the impugned order of assessment before the High Court of Assam and Nagaland, but the High Court dismissed their petition. Against the decision of the High Court this appeal has been brought by special leave.

Only point urged by Mr. Gopalakrishnan, learned counsel for the assessees, is that the return submitted by them is not a voluntary return. Therefore, the case is governed by the decision of this court in State of Assam v. D. C. Choudhuri. If the contention taken by the learned counsel for the appellants that the return submitted by them is not a voluntary return is correct, the matter would have required further consideration. But, we have to see whether that contention is factually correct. In other words, we have to see whether the return submitted by the assessees on March 5, 1962, was a voluntary return or not.

In the writ petition filed by the appellants it was alleged that the return in question was submitted under protest. But, that allegation was denied by the department in their counter-affidavit. The appellants have not adduced any evidence to show that the return in question was submitted under protest. We have gone through the return submitted by the appellants. There is no mention in that return that it was made under the protest. There is no other evidence to show that the return in question was made under protest. The contention that the return was made under protest does not appear to have been taken before the appellate authority. Therefore, there appears to be no merit in the plea taken by the appellants. If the said return was not made under protest, then it is a return submitted in response to the general notice under section 19(1) of the Act. That being so, the assessment made is a valid assessment as held by this court in Deva Prasad Barua's case, referred to earlier.

For the reasons mentioned above, this appeal fails and the same is dismissed with costs.

Appeal dismissed