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Dinubhai Ishvarlal Patel Vs. K.D. Dixit, Income-tax Officer, Ahmedabad and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Application No. 1262 of 1975
Judge
Reported in[1979]118ITR122(Guj)
ActsIncome Tax Act, 1961 - Sections 2(7), 2(31), 64, 64(1), 147 and 148
AppellantDinubhai Ishvarlal Patel
RespondentK.D. Dixit, Income-tax Officer, Ahmedabad and ors.
Appellant Advocate K.C. Patel, Adv.
Respondent Advocate G.N. Desai, Adv.
Excerpt:
direct taxation - individual - sections 2 (7), 2 (31), 64 and 147-148 of income tax act, 1961 - 'individual' referred to in section 64 (1) (ii) can only be assessee assessed in his individual capacity and not in representative capacity representing either association of persons or trustee or hindu undivided family or such similar entity - section 64 (1) (ii) could not be invoked in case of share of profits earned by minor sons of petitioner admitted to benefit of partnership firm. - - when 'such individual',is thought of in connection with a wife, it can only be a male of the species, but when 'such individual' is thought of in connection with a minor child it can be both a male as well as a female of the species, though, of course, when 'such individual' is thought of in connection.....divan, c.j.1. the question that arises in this special civil application filed under art. 226 of the constitution is as to what is the exact connotation of the words 'such individual' occurring in s. 64(1)(ii) of the i.t. act, 1961. 2. the facts leading to this petition are that the petitioner, who is a citizen of india, is a partner in the partnership firm of messrs. rashmikant & co. which is carrying on business at new cloth market, ahmedabad. he is a partner in his individual capacity in that firm. the firm of rashmikant & co. came into existence in s.y. 2021 and the relevant assessment year for that accounting period is the assessment year 1966-67. since that time, the firm of rashmikant & co. has been doing business in cloth until now. the constitution of the firm was changed in s.y......
Judgment:

Divan, C.J.

1. The question that arises in this special civil application filed under art. 226 of the Constitution is as to what is the exact connotation of the words 'such individual' occurring in s. 64(1)(ii) of the I.T. Act, 1961.

2. The facts leading to this petition are that the petitioner, who is a citizen of India, is a partner in the partnership firm of Messrs. Rashmikant & Co. which is carrying on business at New Cloth Market, Ahmedabad. He is a partner in his individual capacity in that firm. The firm of Rashmikant & Co. came into existence in S.Y. 2021 and the relevant assessment year for that accounting period is the assessment year 1966-67. Since that time, the firm of Rashmikant & Co. has been doing business in cloth until now. The constitution of the firm was changed in S.Y. 2027 corresponding to assessment year 1972-73. The details of the changes in the constitution of the firm are not material for the purposes of this judgment but no minor child of the petitioner has ever been admitted to the benefits of partnership in the firm of Rashmikant & Co. and the wife of the petitioner has never been a partner in the said firm of Rashmikant & Co.

3. The firm of Rashmikant & Co. has been treated as a registered firm and has been so assessed for the assessment years 1966-67 to 1973-74, both inclusive. The share of the petitioner in the said firm has been added to the income of the petitioner in the status of an individual by respondent No. 1 who is the ITO in charge of the assessment of the firm of Rashmikant & Co. The order of assessment for the assessment year 1966-67 in the case of petitioner in the status of an individual has been made on January 24, 1969, and similarly, for the subsequent assessment years, orders of assessment have been made against the petitioner in the status of an individual on different dates.

4. Apart from the petitioner being a partner in his individual capacity in the firm of Rashmikant & Co., the petitioner is shown as a partner in the firm of Messrs. Dinubhai Ishvarlal & Co. which is also carrying on business at the New Cloth Market at Ahmedabad. The petitioner represents the joint Hindu family consisting of himself, his wife and his sons, so far as the firm of Dinubhai Ishwarlal & Co. is concerned. This firm is Dinubhai Ishvarlal & Co. came into existence in S.Y. 2003 corresponding to assessment year 1948-49. Subsequently, there were several changes in the constitution of the firm but what is material to be noted is that the petitioner has been a partner in the firm of Dinubhai Ishwarlal & Co. since its very inception. On February 6, 1958, a partnership deed has been executed between the petitioner and the other partner, Ishvarlal Ambalal Patel, who was none else than the father of the petitioner. The petitioner joined the firm with the funds of his HUF and in the partnership deed, there was a mention that that firm had come into existence with effect from February 1, 1958. By virtue of this partnership deed, the minor sons of the petitioner, namely, Bharatkumar and Rashmikant, were admitted to the benefits of the partnership and each of them was given twenty paise share in a rupee in the profits of the firm of Dinubhai Ishvarlal & Co. Up to S.Y. 2022, the constitution of the firm continued according to the partnership deed of February 6, 1958. On July 15, 1967, Bharatkumar, the son of the petitioner, became major and he exercised his option of becoming a partner with effect from July 16, 1967, and accordingly, a new deed of partnership was executed on October 21, 1967, between the petitioner, Bharatkumar, and Ishvarlal Ambalal while Rashmikant Dinubhai, the other son who was a minor, was admitted to the benefits of the partnership and a share of twenty paise in the profits of the firm was given to him. On February 25, 1970, in S.Y. 2026, Ishvarlal Ambalal died and from February 26, 1970, the petitioner and his son, Bharatkumar, and the wife of the petitioner, namely, Mradulaben Dinubhai, started a new firm as partners and a new deed of partnership was executed on March 9, 1970. Under this deed of partnership of March, 1970, Rashmikant Dinubhai who was still a minor was admitted to the benefits of the partnership, a share of twenty paise having been given to him in the firm.

5. It is the petitioner's case that the firm of Dinubhai Ishwarlal & Co. had been assessed by the ITO, who is respondent No. 2 in this case, and/or his predecessors as a registered firm and the share in the income of the petitioner in the said firm was assessed by ITO in the relevant assessment year as the income of the HUF of the petitioner. Accordingly, the orders of assessment for the petitioners-HUF for 1966-67 had been passed on February 30, 1967, (sic) and the orders in the same terms for the assessment years 1970-71 to 1972-73 had been passed on different dates subsequently. It is the petitioner's case that in the firm of Dinubhai Ishwarlal & Co. the petitioner was a partner in his capacity as the karta of the HUF and, therefore, the income-tax authorities were rightly assessing his share of income of the firm of Dinubhai Ishwarlal & Co. as the income of the HUF and while assessing the income of the HUF, the share of profits of the minors was not being included in the income of the HUF. So far as the wife of the petitioner, Mradulaben, was concerned, for the assessment year 1971-72, the previous accounting year being S.Y. 2026, the ITO added in her income the share of profits of the minor, Rashmikant Dinubhai, in the firm of Dinubhai Ishvarlal & Co. by resorting to s. 64(1)(ii) of the I.T. Act, 1961. Against this order, Mradulaben had preferred an appeal before the AAC and that appeal was partly allowed to the extent of reducing the share of the minor added in her income prior to her joining as partner. An appeal before the Tribunal was preferred and the Tribunal, by its order dated October 11, 1975, upheld the deletion of income of minor Rashmikant up to November 25, 1970, from the income of Mradulaben as she became partner after February 25, 1970. Notices have been issued against the petitioner under ss. 147 and 148 of the I.T. Act, 1961, in connec-with the assessment years 1970-71 to 1973-74, stating that the ITO concerned had reason to believe that the income of the petitioners chargeable to tax in the said assessment years had escaped assessment within the meaning of s. 147 of the Act and he therefore proposed to recompute the income of the petitioner for the said assessment years and thereby, returns of income in the prescribed form for the relevant assessment years were required to be filed. Similarly, notices for the assessment years 1966-67 onwards up to 1969-70 were served on the petitioner also under s. 147 read with s. 148 of the Act.

6. It is the contention of the petitioner that so far as the income coming to him from the profits of Dinubhai Ishwarlal & Co. is concerned, he is merely a partner in his capacity as the karta of his HUF, and, hence, he is not a partner in the firm of Dinubhai Ishwarlal & Co. in his individual capacity, and, hence, the provisions of s. 64(1)(ii) cannot be utilised for the purpose of adding the income of minor, Rashmikant, and the earlier income of the minor, Bharatkumar, when Bharatkumar was minor, to the income of the petitioner which he derives in his individual capacity and for which he is being assessed individually.

In order to appreciated the contentions which are being urged before us, it is necessary to refer to the provisions of s. 64(1)(ii) of the Act. The words of that section, at the relevant time, so far as are relevant for the purposes of this judgment, were :

'64. (1) In computing the total income of any individual, there shall be included all such income as arises directly or indirectly - ....

(ii) to the spouse of such individual by way of salary, commission, fees or any other form of remuneration whether in cash or in kind from a concern in which such individual has a substantial interest :.......'

It may be noted that under s. 2(7) of the Act :

'Assessee' means a person by whom any tax or any other sum of money is payable under this Act, and includes - ..... (b) every person who is deemed to be an assessee under any provision of this Act......'

Under s. 2(31) :

'person' includes -

(i) an individual,

(ii) a Hindu undivided family,

(iii) a company,

(iv) a firm,

(v) an association of persons or a body of individuals, whether incorporated or not,

(vi) a local authority, and

(vii) every artificial juridical person, not falling within any of the preceding sub-clauses.'

7. It is clear that so far as the provisions of s. 64(1)(ii) as they stood at the relevant time were concerned, the question was of the income of an individual, in other words, the concept of an individual has been used, and in the context of s. 2(31) of the Act, an 'individual' has a different connotation from an HUF and other categories which are included in the definition in s. 2(31). It may be pointed out that, under the Indian I.T. Act of 1922, prior to 1937, there was no provision similar to s. 64(1)(ii). It was only by the Amendment Act of 1937, that for the first time the concept of including the income of minor in the income of the father or the parent was introduced for the first time. The legal position arising out of the provisions of s. 16(3)(a)(ii) of the Indian I.T. Act of 1922 was considered by the Supreme Court in CIT v. Sodra Devi : [1957]32ITR615(SC) . The question that arose for consideration in that case was whether the word 'individual' in s. 16(3)(a)(ii) of the Act of 1922 included also a female and the income of minors derived from the partnership firm to which they had been admitted was liable to be included in the income of the mother who was a member of that partnership. At page 620, Bhagwati J., speaking for the majority of the Supreme Court judges, pointed out :

'The word 'assessee' is wide enough to cover not only an 'individual' but also a Hindu undivided family, company and local authority and every firm and other association of persons or the partners of the firm or the members of the association individually. Whereas the word 'individual' is narrower in its connotation being one of the units for the purposes of taxation that the word 'assessee', the word 'individual' has not been defined in the Act and there is authority for the proposition that the word 'individual' does not mean only a human being but is wide enough to include a group of persons forming a unit. It has been held that the word 'individual' includes a corporation created by a statute, e.g., a university or a bar council, or the trustees of a baronetcy trust incorporated by a Baronetcy Act. It would also include a minor or a person of unsound mind. If this is the connotation of the word 'individual' it follows that when section 16(3) talks of an 'individual' it is only in a restricted sense that the word has been used. The section only talks of 'individual' capable of having a wife or minor child or both. It therefore, necessarily excludes from its purview a group of persons forming a unit or a corporation created by a statute and is confined only to human beings who in the context would be comprised within that category.'

At page 623, it was further observed :

'We have, therefore, got to examine whether the use of the word 'individual' in section 16(3)(a) of the Act is in any manner ambiguous. The opening words of section 16(3) talk of 'any individual' whose total income has got to be computed for the purpose of assessment and the words 'such individual' used in section 16(3)(a) have reference only to that individual. That individual must be an assessee and it is in the computation of his total income for the purpose of assessment that the income of the persons mentioned in clauses (a) and (b) have got to be included. Sub-clause (a) refers to two distinct sets of persons bearing a relationship with 'such individual', the assessee. One is a wife and the other is minor child. The case of the wife is dealt with in sub-clauses (i) and (iii) and the case of a minor child is dealt with in sub-clauses (ii) and (iv).'

It was further observed at page 625 :

'The legislature, however, chose to adopt a peculiar mode of enactment either for the purpose of economy of words or structural beauty and mixed up both these sets of provisions into the enactment of clause (a) of section 16(3) of the Act as it stands at present. It rolled in both these sets of cases and used the words 'a wife' or 'minor child' of 'such individual' raising thus the question of construction which has got to be determined by us. 'Such individual', as is talked of in section 16(3)(a), may have a wife, may have a minor child or may have both a wife and a minor child. When 'such individual', is thought of in connection with a wife, it can only be a male of the species, but when 'such individual' is thought of in connection with a minor child it can be both a male as well as a female of the species, though, of course, when 'such individual' is thought of in connection with 'both' then again, it would have to be a male of the species and certainly not a female. Such an interpretation would lead to the interpretation of the same words 'such individual' as meaning two different things in two different contexts.'

Das J., who delivered the dissenting judgment in Sodra Devi's case : [1957]32ITR615(SC) , has pointed out at page 635 :

'The word 'individual' is not defined in the Act, but the meaning of the word in section 3, 4A, 48 and 55 is reasonably clear. The word 'assessee' is defined in clause (2) of section 2 of the Act, as meaning of person by whom income-tax or any other sum of money (which would include super-tax, penalty or interest) is payable under the Act. It also includes every person in respect of whom any proceeding under the Act is taken for the assessment (a) of his income, (b) of his loss, or (c) of the amount of refund due to him. Thus, the definition covers two categories : first, persons by whom any tax, penalty or interest is payable under the Act, whether any proceeding under the Act has been actually taken against them or not; and, secondly, persons against whom any of the proceedings specified in this clause has been taken, whether he is or is not liable to pay any tax, penalty or interest... Thus, we have six categories of assessee referred to in section 3 - (a) the individual, (b) the Hindu undivided family, (c) the local authority, (d) the company, (e) the firm, and (f) other association of persons. Read in the context of section 3 of the Act, the word 'individual' means, in the other sections, one of the six categories of assessee referred to in section 3. The same category is also referred to in sub-section (3) of section 16, subject only to this restriction that, in context of the sub-section, the word 'individual' does not include a corporation, etc.'

8. The point of difference between the majority and the minority views in Sodra Devi's case : [1957]32ITR615(SC) , was whether the words 'male of species' which was the interpretation placed by majority of the judges should be placed on the words 'such individual' while interpreting the words 'such individual'. S. K. Das J. did not agree with this further restriction of the word 'individual' but both the majority and minority view were that the word 'individual' must refer to an assessee in his individual capacity. The majority view makes it clear that the word 'such individual' occurring in s. 16(3)(a)(ii) of the 1922 Act refer only to a person who was capable of having a wife or who was capable of having a minor child. That was also the meaning which appealed to S. K. Das J. We are not concerned with the question of male or female of the species in the present case, but the meaning does become clear even in the context of s. 64(1), sub-cls. (i) and (ii), that the 'individual' that is referred to in sub-s. (1) must be an assessee who is capable of having a spouse or who is capable of having minor child. We are concerned with the fact that after the use of the word 'spouse' inserted in the Act after Sodra Devi's case : [1957]32ITR615(SC) , it clear that the individual is being assessed in his individual capacity so as to be capable of having a spouse or a minor child. To that extent, the decision in Sodra Devi's case : [1957]32ITR615(SC) throws light on the meaning of the words 'such individual' occurring in s. 64(1)(ii) of the Act.

In CIT v. Bagyalakshmi & Co. : [1965]55ITR660(SC) , the Supreme Court has pointed out the exact concept of 'partners' in the context of the Partnership Act and the Income-tax Act. It was pointed out (p. 664) :

'A contract of partnership has no concern with the obligation of the partners to others in respect of their shares of profit in the partnership. It only regulates the rights and liabilities of the partners. A partner may be the karta of a joint Hindu family; he may be a trustee; he may be enter into a sub-partnership with others; he may, under an agreement, express or implied, be the representative of a group of persons; he may be a benamidar for another. In all such cases he occupies a dual position. Qua the partnership, he functions in his personal capacity; qua the third parties, in his representative capacity. The third parties, whom one of the partners represents, cannot enforce their rights against the other partners nor the other partners can do so against the said third parties. Their right is only to a share in the profits of their partner-representative in accordance with law or in accordance with the terms of the agreement, as the case may be.'

It was pointed out by Subba Rao J. as he then was, speaking for the Supreme Court in Bagyalakshmi's case : [1965]55ITR660(SC) :

'A partnership is a creature of contract. Under Hindu law a joint family is one of status and right to partition is one of its incidents. The income-tax law gives the Income-tax Officer a power to assessee the income of a person in the manner provided by the Act. Except where there is a specific provision of the Income-tax Act which derogates from any other statutory law or personal law, the provision will have to be considered in the light of the relevant branches of law.'

9. It is, therefore, clear that so far as a partner is concerned, qua his partners he is an individual and qua them he functions in his personal capacity. However, when it comes to a person who represents an HUF in the affairs of a partnership firm qua the members of the HUF he is in his representative capacity. He represents them so far as outsiders are concerned, but qua them, he is merely their representative. If he is a representative, he is not an individual person. It can be said that it is just by a chance that the karta was a person whose spouse is also a partner in the partnership firm in which he represents the HUF or the minor child of that karta who represents the HUF in the partnership happens to be admitted to the benefits of the partnership or the spouse happens to be a partner. In neither case, qua the wife or qua the minor child, is he any one else than a representative. It is clear that so far as the HUF is concerned, as was pointed out by the Supreme Court, if a trust is represented in the partnership or if there is a sub-partnership or even a benami partner in any one of these capacities, he is there in no capacity other than as a representative. And it is just by chance that he happens to be the very individual whose spouse is also a partner in the same firm or whose minor child has been admitted to the benefits of that partnership firm, but the word 'individual' occurring in s. 64(1)(ii) must be given the meaning, as pointed out in Sodra Devi's case : [1957]32ITR615(SC) to mean a person who is capable to having a spouse or who is capable of having a minor child. HUF, trust or a sub-partnership do not fall within either of these categories and, therefore, it is obvious that the provisions mean the word 'individual' as a person who is being assessed merely in his individual capacity because only then can the concept of a 'person who is capable of having a spouse or of having a minor child' will have any applicability. It is, therefore, clear on a consideration of s. 64(1)(ii) read in the light of the decisions of the Supreme Court in Sodra Devi's case : [1957]32ITR615(SC) and in Bagyalakshmi's case : [1965]55ITR660(SC) , that there can be no other meaning except this that the word 'individual' and the words 'such individual' must be confined to a person who is being assessed in his individual capacity and in none else.

10. We may point out that this has been considered by the Allahabad High Court in Madho Prasad v. CIT : [1978]112ITR492(All) . There the Division Bench consisting of K. B. Asthana C.J. and Chandrasekhar J. has held that 'the words 'in which such individual is a partner' occurring at the end of clause (ii) of the unamended section 64(1), merely indicate that in order to attract the liability under that clause the father of a minor admitted to the benefits of partnership, should be a partner of the firm, whether as individual or as karta of his joint family. Since the joint family, as such, cannot be a partner of a firm and only an individual can be a partner of a firm, the word 'individual' occurring in s. 64 merely refers to the father of the minor and indicates that such share income of the minor will be treated as the individual income of his father and not as the income of the joint family of which the father is karta' (p. 496). The Division Bench of the Allahabad High Court relied upon the decisions of the Supreme Court in Firm Bhagat Ram Mohanlal v. CEPT : [1956]29ITR521(SC) and Bagyalakshmi's case : [1965]55ITR660(SC) . With great respect to the learned judges of the Allahabad High Court, we are unable to agree with their conclusion. When relying upon the observations of Subba Rao J., as he then was, in Bagyalakshmi's case : [1965]55ITR660(SC) , they observed at page 496 of the report :

'In view of the aforesaid enunciation of law by the Supreme Court, it is clear that even where a karta of a joint family enters into a partnership with others, in relation to the firm and his rights and obligations in regard to the other partners, he is partner only as an individual though his joint family is entitled to get from him his share in the profits of the firm and the joint family is liable for his share of losses in the firm. But, qua other partners of the firm, he is a partner only in his individual capacity and the joint family, as such, does not become a partner nor will other members of the family become partners of that firm.

From the aforesaid legal position it follows that the word 'in which such individual is a partner' occurring at the end of clause (ii) of the unamended section 64(1) merely indicate that in order to attract the liability under that clause the father of a minor admitted to the benefits of partnership, should be a partner of the firm, whether as individual or as karta of his joint family.'

11. With great respect to the learned judges of the Allahabad High Court, we are unable to draw the conclusion which they have drawn from the observations of the Supreme Court in Bagyalakshmi's case : [1965]55ITR660(SC) . If the observations in Bagyalakshmi's case are read in the light of what has been stated in Sodra Devi's case : [1957]32ITR615(SC) , such conclusion is not possible. With great respect to the learned judges of the Allahabad High Court, it may be respectfully submitted that they have overlooked the emphasis on the words 'Qua the partnership, he functions in his personal capacity'. If he is a representative, it is by chance that that particular member happens to represent the entity of which he is a representative, may the entity be a HUF, a trust or an association of persons.

12. It may also be pointed out that in CIT v. Sanka Sankaraiah : [1978]113ITR313(AP) , the same point as is urged before us arose before a Division Bench of the Andhra Pradesh High Court consisting of S. Obul Reddy C.J. and Chennakesava Reddy J. and in that case the decision of the Allahabad High Court in Madho Prasad's case : [1978]112ITR492(All) was cited. The Division Bench of the Andhra Pradesh High Court differed from the view taken by the Allahabad High Court and it was pointed out (at page 318), after relying on the decision of the Supreme Court in Bagyalakshmi's case : [1965]55ITR660(SC) :

'Qua the partnership, he functions in his individual capacity; qua the third parties, in his representative capacity. Where a person represents as trustee or as karta or as a benamidar, section 64, in our view, cannot be invoked. If we are to agree with the learned counsel for the revenue that section 64 applied to a karta or a trustee, then it would lead to certain absurd situations. Take for instance the case of a trustee as a partner in a firm. If the trustee's case spouse or a minor child are to be a partner of that firm, the income realised by the spouse or the minor child in that firm will have to be added to the income of the trustee earned from sources other than partnership in his individual capacity. .... We are unable to share the view of the Allahabad High Court that the words 'in which such individual is a partner' take in a karta or trustee or representative of a group of persons. The expression 'individual' only takes in a person in his individual capacity and does not take in the karta of a Hindu joint family or a trustee or one who acts as a representative of others.'

13. We respectfully agree with these observations of the learned judges of the Andhra Pradesh High Court because that is the conclusion that we have independently arrived at on our own reasoning in the light of the decisions of the Supreme Court in Sodra Devi's case : [1957]32ITR615(SC) and in Bagyalakshmi's case : [1965]55ITR660(SC) .

One further point which lends support to our conclusion that the Explanation to s. 64(1) points out (at page 316 of 113 ITR) :

'For the purpose of clause (i), the individual in computing whose total income the income referred to in that clause is to be included, shall be the husband or wife whose total income (excluding the income referred to in that clause) is greater; and, for the purpose of clause (ii), where both the parents are members of the firm in which the minor child is a partner, the income of the minor child from the partnership shall be included in the income of the parent whose total income (excluding the income referred to in that clause) is greater; and where any such income is once included in the total income of either spouse or parent, any such income arising in any succeeding year shall not be included in the total income of either spouse or parent unless the Income-tax Officer is satisfied, after giving that spouse or parent an opportunity of being heard, that it is necessary so to do.'

14. In view of the Explanation, it is clear that an 'individual' who is referred to in s. 64(1), clause (ii), can only be an assessee who is being assessed in his individual capacity and not one who is being assessed in a representative capacity, either as representing an association of persons or a trustee or a HUF or some such similar other entity.

15. Under these circumstances, it is obvious that in the light of the facts of the case which are not in dispute the provisions of s. 64(1) could never have been invoked in the case of a share of profits earned by the minor sons of the petitioner, namely, Bharatkumar and Rashmikant, and hence the notices under ss. 147 and 148 which have been impugned in the present case could never have been issued in order to complete the assessment by including in the individual income of the petitioner the share of profits of the minor sons. What we have observed above regarding share of the income or profits coming to the share of the minors would also apply to the share of income to the wife. Under these circumstances, this special civil application is allowed and the impugned notices, annex. A-1, and the orders of reassessment, annex. A-2, together with the notice of demand issued under the Act of 1961, are quashed and set aside. The respondents herein are directed not to proceed further with the notice, annex. A-1, or the order of reassessment, annex. A-2, or the notice of demand issued thereunder. Rule is made absolute accordingly with costs.

16. The learned Government Pleader appearing on behalf of the respondents urged before us that the petition is premature so far as notice under ss. 147 and 148 are concerned because it would be open to the petitioner to proceed by the regular machinery of appeal, first to the AAC, thereafter to the Tribunal and thereafter by way of reference to the High Court. However, since the question involved is a question of jurisdiction, we are examining the matter on the merits of the case and since the case can only fall under s. 64(1)(i) or (ii), we have passed the orders as above.

17. Rule is made absolute accordingly with costs.


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