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TMI Blog1954 (12) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... icer, the notice and the blank form for submitting a return were returned. On the 25th of September, 1942, the Income-tax Officer informed the assessee that the Commissioner of Income-tax, Central Provinces and United Provinces, had assigned the case of the assessee to him under section 5(5) of the Income-tax Act, 1922, and he therefore had jurisdiction whether the assessee firm had or had not an office at Kanpur; and he asked the assessee to appear at Kanpur in person or through an authorised agent on the 2nd of October, 1942, at 11 a.m. and produce evidence in proof of its contention. On the 15th of October, 1942, the assessee re-asserted that the Income-tax Officer had no jurisdiction and that the assessee was, therefore, not prepared to submit to his jurisdiction as desired. On the 15th of February, 1943, the Income-tax Officer served a notice under section 22(4) of the Act on Sohanlal Singhania, one of the partners of the assessee firm. On the 24th of November, 1943, a similar notice under section 22(4) was sent to the assessee's office at Bhopal. On the 15th of December, 1943, the Income-tax Officer made an assessment order under section 23(4) of the Act holding that S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment or re-assessment for the purposes of this Act has been, is being or is to be made in the course of any case in respect of which a Commissioner of Income-tax appointed without reference to area under sub-section (2) of section 5 is exercising the functions of a Commissioner of Income-tax, or (b) where by any direction given or any distribution or allocation of work made by the Commissioner of Income-tax under sub-section (5) of section 5, or in consequence of any transfer made by him under sub- section (7A) of section 5, a particular Income-tax Officer has been charged with the function of assessing that assessee, or (c) who or whose income is included in a class of persons or a class of incomes specified in any notification issued under sub-section (6) of section 5, but the assessment of such person, whether the proceedings for such assessment began before or after the 1st day of April, 1939, shall be made by the Income-tax Officer for the time being charged with the function of making such assessment by the Central Board of Revenue or by the Commissioner of Income-tax to whom he is subordinate, as the case may be. Learned counsel for the assessee has rightly poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected case. After the assessment for the year 1942-43 the Income-tax Officer issued notices under section 22(2) and section 34 of the Act for the assessment year 1941-42 and thereafter issued notices for the assessment years 1943-44, 1944-45 and 1945-46. Miscellaneous Case No. 87 of 1951 refers to these assessment years as also to the excess profits tax assessments for the calendar years 1942, 1943 and 1944. Though in the first paragraph of the statement of the case it is mentioned that a reference was being made under section 66(1) of the Income-tax Act and section 21 of the Excess Profits Tax Act read with section 66(1) of the Indian Income-tax Act, and in paragraph 3 it is mentioned that the excess profits tax assessment for the chargeable accounting periods were the calendar years 1942, 1943 and 1944, the questions formulated do not relate to the Excess Profits Tax Act at all. The points of law in the excess profits tax references that might have to be considered might be entirely different in the income-tax references. In this connection we may draw attention to the third proviso to section 5 of the Excess Profits Tax Act, which is as follows: Provided further that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of any specified case or class of cases, but the sub-section will only apply to a case where the Indian Income- tax Act is applicable and where the Commissioner has jurisdiction under the Act. If the Commissioner has no jurisdiction under the Act, he obviously cannot authorise the Income-tax Officer or the Excess Profits Tax Officer to exercise any powers thereunder. This position is not contested by learned counsel for the Commissioner. Where, however, the Commissioner has jurisdiction and the Income- tax Act applies, the question whether the assessment should have been made by one Income-tax Officer or another is not a question for this Court to consider. In this connection we may refer to a decision of the Federal Court in Wallace Brothers Co. Ltd. v. Commissioner of Income-tax, Bombay, Sind and Baluchistan [1945] 13 I.T.R. 39. Our answer to the first question, therefore, is that if the Income-tax Act was applicable and the assessee was liable under the Act, the Income- tax Officer had jurisdiction to assess the assessee, and in that view the rest of the question does not arise. Coming to the second question, from the statement of the case it appears that notices da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d question, therefore, is that the mere fact that the notices were not actually received by the assessee or a partner of the firm would not invalidate the assessments for the years 1941-42 and 1945-46, if the notices were sent by registered post to the proper address. Coming now to the two applications under section 66(2) of the Indian Income-tax Act, certain important questions of law have been raised by counsel. Mr. Jagdish Swarup relies on the provisions of section 4A(b) of the Income-tax Act and has urged that there is a presumption that a firm is resident in British India and the burden of proving that it is not is on the assessee firm. Section 4A(b) is in these terms: For the purposes of this Act a Hindu undivided family, firm or other association of persons is resident in British India unless the control and management of its affairs is situated wholly without British India;.................. Mr. Pathak, learned counsel for the assessee, on the other hand has urged that there is no such presumption, and that there must be some material before the Income-tax Officer from which he could reasonably come to the conclusion that a firm is resident in British India, and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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