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TMI Blog1956 (12) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1954. On that day before the proceedings commenced, some unpleasant incident occurred as a result of which the hearing was not commenced and was adjourned to 28th June, 1954. On that date the petitioner did not appear but submitted an application to the Sales Tax Officer intimating to him that he did not want his cases to be heard by Shri Pancholia and was approaching the Commissioner, Sales Tax, for transferring them to some other Sales Tax Officer. 3.. On 22nd July, 1954, the petitioner applied to the Commissioner, Sales Tax, for transferring his cases to some other Sales Tax Officer for all purposes and under all circumstances and for staying all further proceedings before Shri Pancholia. The Commissioner, Sales Tax, allowed the application by his order dated 11th October, 1954, and transferred the case of the petitioner pertaining to sales tax proceedings to Shri Kolhe, another Sales Tax Officer at Indore. 4.. During the interval, Shri Pancholia had completed the assessment for the year 1951-52 and had passed a final order in the matter on 5th August, 1954. It is stated that the petitioner has filed an appeal against that order and that appeal is pending before the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it; (2) that the petitioner had applied to the Commissioner, Sales Tax, for transferring his pending case relating to the assessment for the year 1951-52 only; that the Commissioner transferred all the pending cases as also cases relating to future assessment of the petitioner to Shri Kolhe, which was illegal and contrary to law; Shri Kolhe did not, and could not, therefore acquire jurisdiction to assess the petitioner for the years 1952-53 and 1953-54; that therefore the assessment orders passed by Shri Kolhe were without jurisdiction and not binding on the petitioner; (3) that the pecuniary jurisdiction fixed on the basis of the taxable turnover is to be determined with reference to and on the basis of the return filed by the assessee; that Shri Kolhe could not be held to have acquired jurisdiction to assess the petitioner even on the basis of his pecuniary jurisdiction and the assessment made is devoid of any force even for this reason. 9.. The petitioner has impleaded the Chief Secretary to the Government of Madhya Bharat, the Commissioner, Sales Tax, and the Sales Tax Officer, Shri Kolhe, as opponents in this case. All the opponents opposed the petitions. The opponent No. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application and in exercise of the powers under rule 46, transferred the petitioner's case from the jurisdiction of Shri Pancholia and ordered the entire assessment proceedings in respect of the petitioner to be dealt with by him (opponent No. 3); (3) that when the file of the petitioner's assessment was transferred to him, he issued a notice under section 8(2) of the Madhya Bharat Sales Tax Act to the petitioner for his assessment for the years 1952-53 and 1953-54; that the petitioner did not appear on the dates fixed therein and without challenging his jurisdiction, requested him for adjournment of the proceedings; that the petitioner submitted to his jurisdiction and by the applications dated 1st November, 1954, and 28th December, 1954, asked him to reopen the assessment for the year 1951-52 before taking in hand the assessment case for the years 1952-53 and 1953-54; (4) that in spite of repeated opportunities the petitioner failed to appear in compliance with the notice and he (opponent No. 3) had to proceed to assess the petitioner under section 8(4)(a) under the Sales Tax act and to issue a demand notice for payment of the tax; that he also served a notice on the petitioner u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore submitted that the petition was not maintainable and should be dismissed. 13.. Before proceeding further, it is necessary to state that the petitioner in this case has not challenged the vires of any of the provisions of the Madhya Bharat Sales Tax Act or the Madhya Bharat Sales Tax Rules framed in exercise of the powers conferred on the Government under that Act. The validity of the order of assessment alone is challenged and that too on the ground that the Commissioner, Sales Tax, had in passing the order transferring the petitioner's case, exercised powers not vested in him in law. It was contended that by such a transfer order, the Commissioner could not invest the opponent No. 3 with jurisdiction to make the assessment in the petitioner's case. 14.. Under the provisions of the Sales Tax Act, assessment of sales tax is to be made by the Assessing Authority, which means a person authorised by the Government to make assessment. 15.. Section 24 of the Madhya Bharat Sales Tax Act empowers the Government to make rules to carry out the purposes of the Act and in particular and without prejudice to the generality of the powers, the Government is authorised by the rules to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f my powers under rule 46 of the Madhya Bharat Sales Tax Rules, I remove the case relating to the sales tax assessment of Messrs. Khemchand Rajmal, from the jurisdiction of Shri Pancholia and transfer it to the jurisdiction of Shri Kolhe. All the proceedings relating to sales tax assessment of the said assessee will in future be dealt with by Shri Kolhe." 23. Shri Jindal, counsel for the petitioner, has put forward a twofold argument in support of his contention that the order of the Commissioner transferring the case of the petitioner from the jurisdiction of Shri Pancholia to that of Shri Kolhe is invalid. He contended: (i) that the petitioner had applied to the Commissioner for transferring his pending case, viz., the case of the assessment for the year 1951-52, and that the order passed on his application really transferred that case alone from the jurisdiction of Shri Pancholia; that the transfer order was not intended to be operative with respect to cases which were not pending before Shri Pancholia; and (ii) that the Commissioner has passed a general and omnibus order transferring all future cases of the assessee to Shri Kolhe; that this was not permitted by rule 46 under wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter to Shri Kolhe stating therein that he had approached the Commissioner, Sales Tax, with a request to give retrospective effect to his order for transfer of the cases and that the proceedings for assessment for the years 1952-53 and 1953-54 be stayed until the pending issue regarding 1951-52 assessment is finally decided by him. During the interval the petitioner had applied to the Commissioner, Sales Tax, to give retrospective effect to his order dated 11th October, 1954, so as to enable Shri Kolhe to set aside the assessment order for the year 1951-52 which had been passed by Shri Pancholia in a manner prejudicial to him; but his prayer in that behalf was not accepted. 27.. All this correspondence and applications disclose that the petitioner himself believed, even after the transfer order dated 11th October, 1954, was passed by the Commissioner, that the latter had transferred the whole of his case to Shri Kolhe. The petitioner not only raised no objection to the jurisdiction of Shri Kolhe to assess him for the year 1952-53 but wanted Shri Pancholia's order for assessment for the year 1951-52 to be reopened and the case for that year also to be dealt with by Shri Kolhe on it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oard of Revenue by a petition to the Supreme Court under Article 32 of the Constitution of India. It was contended on its behalf that sub-section (7A) of section 5 of the Indian Income-tax Act and the order passed by the Central Board of Revenue under that provision of law were unconstitutional in that they infringed the fundamental right guaranteed to the petitioner under Article 14, Article 19(1)(g) and Article 31 of the Constitution. Both these contentions prevailed. S.R. Das, C.J., with whom the other learned Judges agreed, examined the provisions of section 64 and the provisions of section 5(7A) of the Indian Income-tax Act and held that section 64 conferred a right on the assessee to be assessed by the Income-tax Officer of the area within which his principal place of business was situate or wherein he resided. It gave the assessee a valuable right and entitled him to tell the taxing authority that he shall not be called to attend at different places and upset his business. The learned Chief Justice further held that in order to deprive a particular assessee of the benefit of section 64, there must be a valid order under section 5 (7A). His Lordship then examined the language ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansferred from the jurisdiction of Shri Pancholia to that of Shri Kolhe. 35.. But the order of the Commissioner is not confined to pending proceedings only and is undoubtedly a general order transferring the file of the assessment of the petitioner from the jurisdiction of Shri Pancholia to that of Shri Kolhe without any reference to the cases then pending. 36.. The contention of the opponents is that the Commissioner had authority under rule 46 of the Sales Tax Rules to effect a general transfer as he has done in the present case. I do not think that this contention is well-founded. Powers under rule 46 could be exercised by the Commissioner only to transfer cases pending before one Sales Tax Officer to another and the order must therefore refer to either specific cases or class of cases and the cases must in any event be pending. The validity of the general order passed by the Commissioner cannot therefore be supported by reference to rule 46. 37.. The opponents however have contended that even apart from the transfer order, it was Shri Kolhe alone who was possessed of the jurisdiction to assess the petitioner for the particular years, i.e., 1952-53 and 1953-54. The content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to stay further proceedings before Shri Pancholia until orders were passed on the transfer application. The transfer was thus effected on his own representation and to suit his own convenience. The petitioner took the benefit of this order. He approached Shri Kolhe, the Sales Tax Officer, to whom the assessment case of the petitioner was transferred and requested him to reopen the assessment for the year 1951-52 and then finalise the assessment for the years 1952-53 and 1953-54. He also approached the Commissioner, Sales Tax, with a request that the order of transfer should be given retrospective effect so as to enable Shri Kolhe to reopen Shri Pancholia's order of assessment for the year 1951-52. It was only when he did not succeed in his efforts and when Shri Kolhe passed his orders relating to the assessment for the years 1952-53 and 1953-54 and called upon him to pay the amount of tax, that the petitioner turned round and raised the contention that Shri Kolhe had no jurisdiction to pass the assessment orders and that it was really Shri Pancholia who had jurisdiction to do so. To start with, the petitioner took advantage of the order of transfer to the fullest extent but late ..... X X X X Extracts X X X X X X X X Extracts X X X X
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