This writ petition was placed before Jindra Lal J. of the Punjab High Court sitting on circuit here on December 3, 1965, when a preliminary objection was raised on behalf of the respondents that the Income-tax Officer, Jamshedpur, Bihar, was a necessary party, put had nto been imp leaded in these proceedings. It was urged that the petitioner was asking for a writ of mandamus directing the respondents to comply with the orders for a writ of mandamus directing the respondents to comply with orders of the Income-tax Appellate Tribunal, Calcutta Bench, dated December 3, 1958, and the officer required to obey the direction should have been imp leaded. The learned counsel for the petitioner, though nto acceding to this objection, agreed, to avoid any controversy, to in plead the said Income-tax Officer as a respondent. It may be pointed out that the respondents position was that, though no writ of mandamus could go from this court to the Income-tax Officer, Jamshedpur, nevertheless, he was a necessary party. The case was accordingly adjourned to enable the petitioner to take appropriate steps in the matter. At the same time, the learned single judge fell that the question of law raised was of importance and should be decided be a larger Bench. It is in pursuance of this order that this petition has been placed before us for disposal.
Before us also, a preliminary objection to the competency of these proceedings in this court has been raised by Shri B. N. Kirpal, the learned counsel appearing for the Union of India. According to the learned counsel, the entire cause of action arose outside the jurisdiction of this court and the mandamus is also required to go outside its jurisdiction. In the circumstances, this petition should be rejected on the ground of want of jurisdiction. In support of a Division Bench of this court in Shiv Shankar Lal Gupta Khand was v. Commissioner of Income-tax, decided by Hegde C.J. and my learn brtoher Tatachari J. on March 14, 1967.
In order to understand this objection, we may briefly turn to the facts giving rise to the present objection. According to the averments in the writ petition, the petitioner, the Jamshedpur Engineering and Machine ., is a joint stock private limited company with its registered office and factory in Jamshedpur in the State of Bihar, where it carries on the business, inter alia, of manufacturing and/or processing components of plant and machinery and is assessed to income-tax by the Income-tax Officer, &quto;A&quto; Ward, Jamshedpur. The petitioner had agreed with one Safaks Society of Belgium, Purpose, for the latter to render technical advice to the petitioner in the manufacture of rolls in consideration of payment of certain royalties by the petitioner. In the dealing between the two, certain amount by way of royalties was paid by the petitioner and the Belgium Society is said to have agreed to forgo an excess payment of certain amount. The petitioner, as an agent of the said society for the Indian tax purposes, was also contesting the assessment to tax of the said society by the Indian income-tax authorities in appeals and representations. For this purpose, it was agreed between the society and the petitioner that fifty per cent. of the refund of taxes already paid, obtained by the petitioner as a result of the appeals or representations, would also be forgone by the society. As a result of the petitioners efforts, the ttoal sum of refund due back to the said society was Rs. 70,256, of which a ttoal sum of Rs. 5,796 only was in fact granted refund by the income-tax administration. Of that, Rs. 2,898 was assessed to taxes as the income or profit of the petitioner in the assessment year 1957-58, on the material previous accounting year ending March 31, 1957. For the assessment year 1953-54, on the income for the previous year ending March 31, 1953, the petitioner represents to have duly filed a return of ttoal income and ttoal world income on November 7, 1953. A sum of Rs. 50,195 was shown appropriated by adjustment of various accounts. This amount was held by the Income-tax Officer as income, profits and gains of the petitioner in the assessment order. The petitioner feeling dissatisfied preferred an appeal under section 30 of the Income-tax Act with the Appellate Assistant Commissioner of Income-tax, who on June 10, 1957, dismissed that appeal. A second appeal under section 33 of the Income-tax Act to the Appellate Tribunal, Calcutta Bench, was presented in July, 1957, and the same was disposed of by the order dated December 3, 1958. According to the writ petition, the substance of the decision of the Tribunal is :
&quto;(i) the sum of Rs. 15,066 could nto be the income, profits or gains of the petitioner; and
(ii) it is only in the accounting year when the petitioner, as agent of the aforesaid society, would in facts receive the refund of Rs. 70,256, that in pursuance of the agreement between the petitioner and the society, one half of that sum would accrue or arise to the petitioner and as such would be the income, profits or gains of the petitioner liable to assessment.&quto;
The Income-tax Officer was directed to determine the refund received by the said society during the year of account and calculate fifty per cent. of that for taxation purposes in the instant assessment year in the hands of the petitioner. The petitioner, according to his averments, has been trying to have this order of the Appellate Tribunal obeyed and carried out by the Income-tax Officer, &quto;A&quto; - Ward, Jamshedpur, by the Inspecting Assistant Commissioner of Income-tax having jurisdiction over the Income-tax Officer, Southern Range, Ranchi, and by the Commissioner of Income-tax, Bihar and Orissa, with his office at Patna. In February, 1963, the petitioner moved the Central Board of Revenue, New Delhi (respondent No. 2 in this court), praying for suitable orders and directions in its capacity as the ultimate residuary authority over the aforesaid income-tax authorities. This application was entertained by respondent No. 2 and was considered by Shri H. K. Sondhi, Under Secretary, Central Board of Revenue (respondent No. 3 in this court), who finally communicated to the petitioner as per letter dated April 25, 1963, that respondent No. 2 and declined to interfere in the matter. It is no these basic facts that we are called upon to consider the preliminary objection.
Shri Ved Vyasa, the learned counsel for the petitioner, has submitted that by virtue of section 5(8) of the India Income-tax Act, 1922, all officers and persons employed in the execution of the said Act are enjointed to observe and follow the orders, instructions and directions of the Central Board of Revenue. This section, by virtue of this power, also cltohes every litigant with a right to move the Central Board of Revenue for relief against all acts of omission and commission committed by the officers an persons employed under the said Act form which the litigations may fee aggrieved. It is on this basis that, according to the petitioner, this court has jurisdiction to grant the requisite relief to the petitioner by issuing mandamus to the Central Board of Revenue to intervene and adjudicate upon the petitioners grievance. According to Shri Ved Vyasa, all the earlier orders of the Central Board of Revenue. In support of the argument of merger, the learned counsel has relied on Collector of Custom v. East India Commercial Co. Ltd. It is observed in this judgment the on principle when once an order of an original authority is taken in appeal to the appellate authority, which it located beyond the territorial jurisdiction of the High Court, it is order of the latter authority which is it operative order after the appeal is disposed of. We are unable to hold that this decision is of much assistance to the petitioner. Section 5(8) does I confer any appellate power on the Central Board of Revenue in regard to everything done by all officers and persons employed in the execution of the Income-tax Act of 1922. This provision, as we construe it, merely lays down that all officers and persons mentioned therein are bound to obey the instructions, directions and orders made by the Central Board of Revenue and has ntohing to do with the appellate power conferred under the Act against various judicial or quasi-judicial orders.
The second submission which has been pressed with force by Shri Ved Vyasa is that the money which has been realised from the petitioner, has gone to the coffers of the Union of India and they have, thereforee, to refund it. This court, would, according to this submission, have full jurisdiction to entertain and dispose of the present writ petition because the Union of India has to be given directions by this court to refund the amount.
Here again, we find it difficult to uphold this submission. The order which the petitioner seeks to enforce, was made by the Income-tax Appellate Tribunal, Calcutta Bench, on December 3, 1958, and the officers to whom that order gives directions are also outside the jurisdiction of this court. Prima facie, thereforee this court would nto have territorial jurisdiction either over the officers to whom writ is sought to go or over the cause of action from which the petitioner is feeling aggrieved. The contention that since the money realised from the petitioner has gone to the coffers of the Union of India and this court has merely to direct the Union of India to refund the amount, has the merit of ingenuity, but appears to us to be too tenuous to sustain the plea of jurisdiction of this court, on the facts and circumstances of the present case. The order of refund has to be made by appropriate authorities and ntohing cogent has been urged to convince us that such an appropriate authority is within our jurisdiction. The technical location of the coffers of the Union of India in Delhi is, in our opinion, too tenuous a basis for assuming jurisdiction over the controversy before us.
The ratio decidendi of the unreported Bench decision of this court in the case of Shri Shiv Shanker Lal Gupta Khandelwal also lends support to the respondents preliminary objection, but even assuming that the unreported case is distinguishable in some respects, and also assuming that it is nto correctly decided, as has in the last resort been urged by Shri Ved Vyasa, we would, in our discretion, decline to go into the controversy and leave it to the petitioner to approach for suitable relief the appropriate High Court having jurisdiction over the Income-tax Appellate Tribunal, Calcutta Bench, and the officers to whom its order gave directions, which the petitioner is seeking to enforce. It is nto contended that the Calcutta High Court has no jurisdiction over the matter, as indeed it could nto be so contended.
For the reasons foregoing, we decline to go into the merits of the controversy raised before us. On the view that we have taken, we do nto consider it necessary to deal at length with the decisions cited at the bar on the doctrine of merger of the appellate order or on the questions of the exercise of discretion by the writ court. We may only point out that discretion has to be exercised on the facts and circumstances of each case and no decision can provide a straight jacket for future courts in the matter of exercise of discretion. Indeed, no decision has been cited which would afford appropriate guidance on the peculiar facts and circumstances of the case in hand because none of them dealt with facts which bear any close resemblance to the present.
For the forgoing reasons, this writ petition fails and is dismissed, but without any order as to costs.