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TMI Blog1956 (4) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... ter transferred to the Income Tax Officer. A Ward, Udaipur, who was also designated as Seventh Additional Income Tax Officer, Ajmer. In pursuance of this notice, the applicant filed his return on the 10-6-1955. At the same time, he took the objection that the Income Tax Officer, Ajmer, who has issued the notice under Section 34, had no jurisdiction to do so, and therefore no proceedings could be taken against him. The Income Tax Officer overruled this objection, and proceeded to assess the applicant, and actually passed an assessment order on the 15-3-1955, by which the applicant was ordered to pay ₹ 91,098/- as Income Tax. It may be mentioned that the applicant has filed an appeal against this order which is pending before the Appellate Assistant Commissioner. He has also come to this Court under Article 226 at the same time, and prays that this Court should interfere on three main grounds, namely- (1) that the Income-tux Officer, Ajmer, who issued the notice had no jurisdiction under Section 64 of the Income Tax Act to issue such a notice to the applicant; (2) that it was incumbent on the Income Tax Officer to refer the dispute as to the place of assessment under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of Sub-section (1) and Sub-section (2) shall not apply where by any direction given or any distribution or allocation of work made by the Com-missioner of Income Tax under Sub-section (5) of Section 5, or in consequence of any transfer made under Sub-section (7-A) of Section 5, a particular Income Tax Officer has been charged with the function of assessing that assessee. ' The case of the Income Tax Department is that notice was issued to the applicant by the Income Tax Officer, Ajmer, by virtue of a notification under Sub-section (5) of Section 5. We do not think it necessary for present purposes to consider whether the Income Tax Officer, Ajmer, could issue a notice to the applicant under Section 34 by virtue of the notification which has been issued under Section 5(5). The reason for this is that the applicant is barred from raising the question of the place of assessment (this is what he means by saying that the Income Tax Officer, Ajmer, had no jurisdiction to issue notice to him) by the second proviso to Section 64(3). It is, therefore, necessary to set out Section 64(3) which is as follows--. Where any question arises under this section as to the place of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter. 6. In this case, the assessee did not file any return in response to the general notice under Section 22(1) and therefore his case is governed by the second part of the second proviso, which lays down that where an assessee has received a notice under Section 34, and wants to take an objection as to the place of assessment, he must do so before the period fixed in the notice for making a return expires. In this case, the assessee received a notice under Section 34, and was allowed time up to the 1-5-1954, to make a return. He had, therefore, the right to object to the place of assessment up to the 1-5-1954. If he did not object to the place of assessment till then, the second part of the second Proviso bars any such objection. In the present case, it is not in dispute that the applicant did not object to the place of assessment (or what he calls the jurisdiction of the Income Tax Officer, Ajmer) within the time allowed. He could not, therefore, be heard to object to the place of assessment (or what he calls the jurisdiction of the Income Tax Officer, Ajmer) after that date. His objection, therefore, as to the place of assessment in March, 1955, was barred by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment is a matter more of administrative convenience than of jurisdiction, and in any event it is not one for adjudication by the Court; and the scheme of the Act does not contemplate an objection as to the place of assessment being raised on an appeal against the assessment after the assessment has been made. (11) In Talchar Sabai Grass Trading Co., Ltd. v. Commr. of Income Tax B O 1947 ITR 455 the Patna High Court has held that under Section 64 of the Indian Income Tax Act, 1922, the question as to the place of assessment has to be determined be fore the assessment is made. An objection as to the place of assessment cannot be raised for the first time on appeal against the assessment after the assessment has been made. Where no objection to the place of assessment or to the assessing officer was raised by an assessee before the Income Tax Officer, the appellate authorities would be entitled to overrule the attempt of the assessee to raise it after the assessment had been made. 12. In U.C. Rekhi v. Income-tax Officer 1st F Ward, New Delhi the Punjab High Court held that the place of assessment of an assessee is a matter which under Section 64 of the Indian Income Tax Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt under Section 66, The Appellate Tribunal can then state a case to the High Court. If the Appellate Tribunal refuses to state a case to the High Court, the assessee can apply to the High Court also under Section 66 to direct the Appellate Tribunal to state a case. It seems to us highly improbable that we should intervene at this stage when an assessment has been made by the Income Tax Officer and when so many remedies are open to the applicant, and he has -- not exhausted them. 17. It was contended on behalf of the applicant that as this case raises the question of jurisdiction, and a writ of prohibition will have to issue, we should not refuse to issue such a writ simply because there are other remedies open to the applicant. It is enough to say that the applicant cannot in view of the provisions of Section 64(3), second proviso, raise any objection as to the place of assessment which is the only question of jurisdiction that he has raised in this case. In these circumstances, there is, in our opinion, no reason for us to intervene at this stage when there are so many remedies still open to the applicant under the Income Tax Act. Nor does it seem desirable on general p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operly followed from such declaration. That, in our opinion, is the important circumstance which distinguishes Himmatlal Harilal Mehta's case (F). The applicant has not contended before us that any part of the Income Tax Act is ultra vires, and in consequence he is entitled to any remedy. It would have been a different matter if we had held that any part of the Income Tax was ultra vires, for in that case we would give relief to the applicant as it is not possible for authorities constituted under the Income Tax Act to give him relief by holding any part of the Act ultra vires. But where as in this case no part of the Act is being attacked, there is, in our opinion, no justification for us to intervene at this stage when other re-medics which are not necessarily onerous are still open to the applicant under the Act. We, therefore, refuse to intervene at this stage in this case, and leave it to the applicant to pursue his remedies under the Income Tax Act so far as the question of his charge-ability to Income Tax under the Act, or other matters are concerned. 20. The application is hereby dismissed with one set of costs to the opposite parties. - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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