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TMI Blog1959 (3) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... lant for the chargeable accounting period ending March 31, 1943. The original assessee was R. B. Seth Teomal who was the manager of a Hindu undivided family. On Seth Teomal's death on May 30, 1944, Seth Ottanmal became the manager. He is now the appellant representing the Hindu undivided family. He will be termed as the appellant in these appeals. Seth Teomal was carrying on the business of a railway contractor at Lalmonirhat in the district of Rangpur which is now in Pakistan. In April, 1943, a notice was served on him under section 22(2) of the Income-tax Act (hereinafter called the Act). He filed the return on February 28, 1944. The Income-tax Officer, Rangpur, served notices on him under sections 24(4) and 23(2) for production of books etc. It appears that assessment proceedings continued before the Income-tax Officer, Rangpur, but no final assessment was made. According to an affidavit which has now been filed in this court the Central Board of Revenue by an order passed under sub-section (2) of section 5 of the Act assigned the appellant's case along with some other assessment cases to the Commissioner of Income-tax (Central) Calcutta. The order contains the following endo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Commissioner on jurisdiction should not have been summarily disposed of by passing reference to an order of transfer of the case from Rangpur to Calcutta without at the same time discussing when the question of jurisdiction was seriously raised and how and under what circumstances and to whom was the case transferred and for what purpose. " " 2. For that the appellant begs leave to repeat that transfer was not legal or proper and was not made by any proper authority to legalise such transfer. " In the excess profits tax appeal also this time an objection was taken as to jurisdiction : " For that the assessment is bad in law having been made without jurisdiction. " The Appellate Tribunal held against the appellant in a short paragraph : " So far as the first objection is concerned, in our opinion, it is not within our jurisdiction to go into this matter. The objection relates to the place of assessment. As held in Wallace Brothers Co. Ltd. v. Commissioner of Income-tax the question as to the proper place of assessment is not one for adjudication by a court or by any appellate authority. Consequently we overrule the first contention of the assessee. " Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of the Tribunal and reliance was placed on the observations of Venkatarama Aiyar, J., in Govindarajulu Mudaliar v. Commissioner of Income-tax. At page 810 it was observed : " The present appeal is against the decision of the Tribunal itself. It is no doubt true that this court has decided in Dhakeswari Cotton Mills Ltd. v. Commissioner of Income-tax, that an appeal lies under article 136 of the Constitution of India to this court against a decision of the Appellate Tribunal under the Indian Income-tax Act. But seeing that in this case the appellant had moved the High Court and a decision has been pronounced adverse to him and this has become final, obviously it would not be open to him to question the correctness of the decision of the Tribunal on grounds which might have been taken in an appeal against the judgment of the High Court. All the points urged before us were taken in the reference under section 66(2) of the Indian Income-tax Act. It would therefore follow that these grounds are not open to the appellant. " But counsel for the appellant relied on Dhakeswari Cotton Mills Ltd. v. Commissioner of Income-tax, where the scope of appeals under article 136 were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee if he has made a return in response to the notice under sub-section (1) of section 22 and has stated therein the principal place where he carries on his business or if he has not made such a return, the time specified in the notice has expired. The third proviso to this sub-section is : " Provided further that if the place of assessment is called in question by an assessee the Income-tax Officer shall, if not satisfied with the correctness of the claim, refer the matter for determination under this sub-section before the assessment is made. " Thus under section 64(3) the question of determination as to the place of assessment only arises if an objection is taken by the assessee and the Income-tax Officer has any doubts as to the matter. But the determination is to be by the Commissioner of Income-tax or the Central Board of Revenue. The Act does not contemplate any other authority. It was contended on behalf of the assessee that he produced his accounts before the Income-tax Officer at Calcutta under protest. There is no mention of this protest in the assessment file and that is what was stated by the Commissioner of Income-tax in his reply which he gave o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Section 5(2) : " The Central Government may appoint as many Commissioners of Income-tax as it thinks fit and they shall perform their functions in respect of such areas or of such persons or classes of persons or of such incomes or classes of incomes or of such cases or classes of cases as the Central Board of Revenue may direct............. " In the present case there are more than one Commissioner of Income-tax in Bengal and the Central Board of Revenue assigned certain cases including the case of the appellant to the Commissioner of Income-tax (Central) at Calcutta for the exercise of his functions as Commissioner. Now this is a power which the Central Board of Revenue did possess under sub-section (2) of section 5. As to which Income-tax Officer was to deal with that case was for the Commissioner of Income-tax to designate. Sub-section (7A) of section 5 confers on the Central Board of Revenue the power to transfer any case from one Income-tax Officer to the other which can be done at any stage of the proceedings. This sub-section is not a provision which in any way modifies or cuts down the power given to the Central Board of Revenue under section 5(2). The two sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as indeed it had under section 5(2) then neither that order could be challenged nor the power of the Income-tax Officer, Calcutta, to make the assessment. After an order by the Central Board of Revenue under section 5(2) of the Act the provisions of sub-sections (1) and (2) of section 64 have no application because of sub-section 5(a) of section 64 which is as follows : " The provisions of sub-section (1) and sub-section (2) shall not apply and shall be deemed never at any time to have applied to any assessee-- (a) on whom an assessment or re-assessment for 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. " In view of this provision, i.e., section 5(2), no objection can be taken on the ground of sub-sections (1) and (2) of section 64. Counsel for the appellant relied on a judgment of the Bombay High Court in Dayaldas Kushiram v. Commissioner of Income-tax where it was held that section 64 was intended to ensure that as far as practicable the assessee should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 64(3) and as the Ordinance had retrospective effect these questions did not arise and that the assessment of the assessee was validly made by the Income-tax Officer and the Ordinance removed the invalidity of the orders made prior to the passing of the Ordinance so far as they related to the assessee. Beaumont, C.J., held that the Income-tax Act did not determine the place of assessment but the Officer who had to assess and that there could be no appeal under the Act against the order of the Commissioner as to the place of assessment, but only against the order of assessment of the Income-tax Officer. Counsel for the appellant also relied on the judgment of the Allahabad High Court in Dina Nath Hem Raj v. Commissioner of Income-tax. In that case the assessee was carrying on business at Calcutta and he was sought to be assessed at Kanpur and an objection was taken to the Income-tax Officer, Kanpur, making the assessment. The Income-tax Officer did not proceed in accordance with section 64(3) and therefore it was held that assessment made by him was without jurisdiction. In the present case no question has been raised as to the jurisdiction of the Income-tax Officer wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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