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TMI Blog1942 (9) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Commissioner of Income-tax, Bombay, Sind and Baluchistan, under Section 5 of the Act before the amendment of 1939. On the 21st of October 1938 the Commissioner of Income-tax, Bombay, Sind and Baluchistan, created a Special Provincial Circle, for which he appointed certain Income-tax Officers to exercise jurisdiction throughout the limits of his own jurisdiction, that is Bombay, Sind and Baluchistan in respect of certain cases transferred to them, and on the 31st of October he transferred to that Special Provincial Circle the assessee's case. The Special Provincial Circle Officer on the 20th December 1938 served a notice under Section 34 of the Act alleging that part of the assessee's income for the year 1937-38 had escaped ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cases of assessees shown in the accompanying statement for the years mentioned against them which statement contained the name of the assessee and against it the year 1937-38 under Section 34. So that the re-assessment was purported to be covered by that order. Subsequently the Commissioner of Income-tax, Central, who had been appointed by the Central Board of Eevenue under the amended Act,. made various orders including one of 12th July 1939 which are discussed in my judgment in Dayaldas Kushiram 's case (supra) , which dealt with the present assessee's case and it is sufficient to say that the Commissioner, Central, purported to assign the assessee's case to one Mr. Shah who was one of the Income-tax Officers appointed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Income-tax Act ; so that the order of the 12th of July was not in fact made under Section 64 (3). Moreover there appears this difficulty that the Governor-General's Ordinance directs that the provisions of sub-section (1) and sub-section (2) of Section 64 of the Indian Income-tax Act are to be deemed not to apply and never to have applied to the present assessee and as Section 64 (3) is confined to deciding any question arising under the section as to the place of assessment I do not see how any order under Section 64 (3) could affect the assessee. I think therefore that question (1) does not arise and need not be answered. The second question is :-. Whether the Income-tax Appellate Tribunal has power to entertain in appeal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s based on the assumption that either of the first two questions is answered in the negative and as we have not answered the first two questions either in the affirmative or in the negative the third question does not arise. The fourth question is the only one which arises and it is in these terms :- Whether the Governor-General's Ordinance No IX of 1939 (later incorporated in Section 64 of the Income-tax Act by an amendment of 1940) has the effect of regularising or validating the proceedings of re-assessment of the petitioner for the charge year 1937-38, irrespective of whether they were initiated by the Income-tax Officer, Special Provincial Circle, without jurisdiction to make the assessment . The position under the orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its language. It is argued by Mr. Coltman that you cannot say that a re-assessment of the assessee was being made in the course of a case in respect of which the Central Commissioner was exercising the functions of a Commissioner because the re-assessment was never validly started. It was however validly started in my view apart from the difficulty arising under Section 64. The difficulty which Mr. Coltman points out seems to me to be removed so far as the assessee is concerned by the latter part of Section 3 of the Ordinance which provides: No assessment made in accordance with Section 2 before the commencement of this Ordinance, and no proceedings taken in the course of or for the purposes of so making an assessment before the commenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant sections of the Income-tax Act. It is not proper for the Court on different hypothesis to give different answers without the particular facts being clearly put before it. In that view I do not think that the second question arises here and is proper to be decided by the Court under the circumstances of this case. Question (3) need not be answered, because it follows questions (1) and (2). As regards question (4), shortly put, the only question is whether the notice dated the 20th of December 1938 was invalid on the ground that the assessee had acquired a right under Section 64 (1) or it was invalid on the ground that the appointment of the Officer Special Provincial Circle was ultra vires. If it was invalid on the ground of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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