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TMI Blog1961 (7) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... special leave from this court. It is with the special leave granted to him that Lalji has brought his appeal before this court. Chhotalal, who is a resident of Bombay, filed Special Civil Application No. 374 of 1960 in the High Court at Bombay, challenging the validity of the notices issued against him by the Fourth Income-tax Officer, Ward G, and claiming appropriate writ or order restraining the said officer from taking any further proceedings under the said notices. This application was summarily dismissed by the High Court and Chhotalal's request for a certificate was likewise rejected. Chhotalal then applied for and obtained special leave from this court, and that is how his appeal has come to this court. In the notices issued by the respective Income-tax Officers against the two appellants an enquiry is proposed to be held in regard to the liability to pay tax on the alleged total income of Rs. 97,00,000 received by either or both of the two appellants his income represents the remittances of monies through the Indian Overseas Bank Ltd., Pondicherry, and the United Commercial Bank Ltd., Pondicherry, and had accrued during the assessment year 1952-53 respectively. Since bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 57. Even this proceeding was stayed by the civil court at the instance of the appellant but the interim injunction issued in that behalf was subsequently dissolved on March 1, 1957. The first respondent then issued another notice on February 23, 1957, fixing March 4, 1957, as the date of hearing. The appellant asked for an adjournment but the adjournment was refused, and on March 4, 1957, an ex parte order of assessment was passed. This order showed that the officer took the view that the appellant was liable to pay tax on the total income of Rs. 93,01,117 and that the amount of tax was determined at Rs. 87,93,958-13-0. An application made by the appellant to the said officer for reopening the assessment under section 27 was dismissed. The appellant then took the matter before the Appellate Assistant Commissioner. The appellate authority allowed the appeals preferred by the appellant against the ex parte order determining the liability of the appellant to pay the tax and against the refusal to reopen the issue. As a result of the appellate order the matter went back to the first respondent for a fresh hearing and that led to the issue of the notice which has given rise to the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch notification has, however, been produced in the present proceedings and indeed the appellant's case throughout has been that the Income-tax Officer, Ward B, Jamnagar, transferred the said papers " without authority, illegally and without any intimation to the appellant and in contravention of section 64 of the Act. " It is unnecessary to enquire why and how this case file was sent from Jamnagar to Bombay. It is patent that the transfer of the case file to Bombay by the Income-tax Officer, Ward B, Jamnagar, was in law wholly invalid and unauthorised. Therefore, it would be idle for the appellant to contend that the proceedings had been validly transferred to any Income-tax Officer in Bombay. That being so, it follows that the proceedings are properly pending before the first respondent and the notice issued by him is valid and legal. In our opinion, therefore, there is no substance in the question of jurisdiction raised by the appellant. That takes us to the appeal preferred by Chhotalal. As we have already mentioned Chhotalal is a resident of Bombay and respondent No. 1 is the Fourth Income-tax Officer, Ward G, at Bombay. It is common ground that respondent No. 1 had at the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts being finally held that the income is not liable to be taxed in his brother's hands ", and it was added that " the appellant's contention that such a procedure is not warranted under the Act is entirely untenable "; but in appreciating the effect of this statement it would be necessary to consider the other relevant statements made by the respondent in his statement of the case. In paragraph 4, for instance, it is added that until the question of liability to pay tax in respect of the income in question is finally determined it may not be possible to safely predicate that it is the income of one and not of the other, and the respondent's case appears to be that in such circumstances protective assessments have to be made so that the income may not escape taxation altogether. In other words, the respondent's case clearly is that the notices issued against the two brothers by their respective Income-tax Officers are intended to determine who is responsible to pay tax for the income in question ; now though Mr. Nambiar wanted to argue that protective or precautionary assessment tax is not justified by any of the provisions of the Act he did not seriously contest the position that a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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