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TMI Blog1942 (9) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... ) taking or continuing any proceedings for the purpose of levying any penalty under the provisions of Section 28 or otherwise; (ii) taking or continuing any proceedings or exercising any jurisdiction or passing any orders in respect of or arising out of the said assessment order or assessment proceedings under the Indian Income-tax Act; and (iii) exercising any jurisdiction or passing any orders in respect of the premises. The further relief seems to be consequential upon or ancillary to the primary relief asked for, namely, the issue of a writ of certiorari. The grounds on which the petitioner bases his claim are two. First, that the assessment made against him for the year 1937-38 was made by an Income-tax Officer who had no jurisdiction to assess him, since the petitioner's assessment for that year had never been legally transferred to the officer who made the assessment, that is Mr. Shah; and, secondly, that the proceedings before the Income-tax Officer were so grossly irregular as to offend against the principles of natural justice. On those two grounds, it is said that we ought to send for the record, and quash the assessment. The Crown have taken a preliminary o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt purporting to be made under the Indian Income-tax Act. We are referred to a decision of a single Judge of the Madras High Court in K.R.M.T.T. Thyagaraja Chettiar v. The Collector [1936] 4 I.T.R. 56, in which it was held that the Court could not issue a writ of certiorari to prevent the execution of an alleged illegal assessment order. That case seems to me to be an authority directly in point. There is another case in the same volume in Ramjidas Mahaliram, In re [1936] 4 I.T.R. 25, in which a single Judge of the Calcutta High Court intimated the view that a writ of certiorari could issue in order to challenge the legality of an income- tax assessment. But in the course of that proceeding, the relief claimed was limited to a writ of prohibition; so that the learned Judge's observations as to a writ of certiorari, were obiter dicta only; and as eventually no writ, even of prohibition, was issued, the case is not a direct authority. In my opinion, the decision of the Madras High Court was right, and it is not open to this Court, in view of Section 226 of the Government of India Act, to call for the record of the Income-tax Department in order to satisfy ourselves that this a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner for the year 1937-38, he allowed the petitioner's partners to be present, one of them with his solicitor, and to take part in the proceedings, although they were not concerned with the assessment of the petitioner. It is, I think, difficult to justify that course in view of the terms of Section 54 of the Indian Income-tax Act, which require that all proceedings under the Act should be treated as confidential. An assessee may well desire that his partners should not know what return he has made under the Act. But a more serious irregularity was this. The Inspecting Assistant Commissioner, Central, who is alleged to be the superior officer of the Income-tax Officer making the assessment, was not only present when the assessment was made, but claimed the right to put questions to the assessee, and when that course was objected to, he said that he would put the questions through the mouth of the Income-tax Officer who was conducting the inquiry, and was an officer subordinate to him. Now, it seems to me that that procedure was grossly irregular. The competent revenue authorities, I will assume, had assigned the assessee's case to Mr. Shah. That is the Crown case, and I as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arises. Section 226 of the Government of India Act prevents the exercise of original jurisdiction by this Court in any matter concerning the revenue, or concerning any act ordered or done in the collection thereof. The order of Mr. Shah made on February 16, 1942, on the face of it is an order directing the assessee to pay. The first prayer is asking the Court to call for the records of these proceedings and to quash that order. In view of the clear words of Section 226, I agree that it is not permitted to this Court to exercise such jurisdiction. The question of irregular exercise of jurisdiction is apart from the question whether the Income-tax Officer had any jurisdiction at all. The question of stopping him from exercising a jurisdiction which is never vested in him is clearly arguable under the decision of the Privy Council in Alcock Ashdown Co. v. Revenue Authority, Bombay [1923] 50 I.A. 227. But that case does not lend support to the argument of the petitioner that afer an order of assessment is made, the Court has jurisdiction to set aside such order. In Alcock Ashdown's case(1) the Court was asked to direct the Commissioner to state a case, that is to perform a ..... 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