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Firm Rasulji Buxji Kathawala Vs. Income Tax Commissioner, Delhi and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtRajasthan High Court
Decided On
Case NumberCivil Writ No. 44 of 1955
Judge
Reported inAIR1957Raj54; [1957]32ITR592(Raj)
ActsIncome-tax Act, 1922 - Sections 34 and 64(3); Constitution of India - Article 226
AppellantFirm Rasulji Buxji Kathawala
Respondentincome Tax Commissioner, Delhi and anr.
Appellant Advocate Ismail Ali and; Chandmal, Advs.
Respondent Advocate K.N. Rajgopal Sastri, Adv.
DispositionApplication dismissed
Cases ReferredState of Bombay v. The United Motors
Excerpt:
.....is made. if the applicant had any objection that the income-tax officer ajmer's office was not the place of assessment for him, he should have taken that objection on or before the 1-5-1954, and as he did not do so, he is barred from raising that objection for ever, and cannot raise it as a ground in support of an application for a writ under article 226. we are, therefore, of opinion that in view of the second proviso to section 64(3), the applicant cannot raise any objection as to the place of assessment, and his writ application based on the plea as to the place of assessment (which he calls the jurisdiction of the income-tax officer, ajmer) must fail. nor does it seem desirable on general principle to intervene in the middle like this when other remedies are undoubtedly open to the..........foradjudication by the court; and the scheme of the actdoes not contemplate an objection as to the place ofassessment being raised on an appeal against the assessment after the assessment has been made.(11) in talchar sabai grass trading co., ltd. v.commr. of income-tax b&o; 1947 itr 455 the patna high court has held that under section 64of the indian income-tax act, 1922, the question asto the place of assessment has to be determined before the assessment is made. an objection as to theplace of assessment cannot be raised for the first timeon appeal against the assessment after the assesmenthas been made. where no objection to the place ofassessment or to the assessing officer was raised by anassessee before the income-tax officer, the appellateauthorities would be entitled to overrule.....
Judgment:

Wanchoo, C. J.

1. This is an application by Firm Rasulji Buxji Kathawala against the Income-tax Commissioner, Delhi, and the Seventh Additional Income-lax Officer, Ajmer, holding his office at Udaipur, and also designated us Income-tax Officer, A Ward, Udaipur, under Article 226 of the Constitution, for a writ in the nature of Mandamus, Prohibition or Certiorari or any other appropriate writ direction or order.

2. The case of the applicant is that it is a registered firm carrying on business of manufacturing and setting Kattha at Udaipur. The Income-tax Officer, Ajmer, served a notice on the applicant on the 29-3-1954, under Section 34 of the Income-tax Act calling upon him to make a return of his income for the assessment year 1945-46 on the ground that certain income had escaped assessment.

The proceedings were later transferred to the Income-tax Officer. A Ward, Udaipur, who was alsodesignated as Seventh Additional Income-tax Officer,Ajmer. In pursuance of this notice, the applicant filed his return on the 10-6-1955. At the same time, he took the objection that the Income-tax Officer, Ajmer, who has issued the notice under Section 34, had no jurisdiction to do so, and therefore no proceedings could be taken against him. The Income-tax Officer overruled this objection, and proceeded to assess the applicant, and actually passed an assessment order on the 15-3-1955, by which the applicant was ordered to pay Rs. 91,098/- as income-tax.

It may be mentioned that the applicant has filed an appeal against this order which is pending before the Appellate Assistant Commissioner. He has also come to this Court under Article 226 at the same time, and prays that this Court should interfere on three main grounds, namely-

(1) that the Income-tux Officer, Ajmer, who issued the notice had no jurisdiction under Section 64 of the Income-tax Act to issue such a notice to the applicant;

(2) that it was incumbent on the Income-tax Officer to refer the dispute as to the place of assessment under Section 64(3) of the Income-tax Act, and as that was not done, the Income-tax Officer could not proceed further; and

(3) that there was no income-tax in Mewar, 1945-46 and the Income-tax Act 1922 did not apply to the State of Mewar, and consequently the applicant was not liable to pay income-tax on the income accrued to him in the year 1945-46.

(3) The application has been opposed on behalf of the opposite parties, and their main pleas with respect to these three points are that the Income-tax Officer, Ajmer, had jurisdiction to issue the notice and that, in any case, the objection as to jurisdiction had to be raised at the latest by the 1-5-1934, which was the date on which the applicant had to file his return according to the notice issued to him, and as that was not done, that objection could not be entertained in view of the second proviso to Section 64(3).

It is also urged that as the applicant did not raise his objection as to the jurisdiction of that particular Income-tax Officer within time, it was not incumbent upon him to refer the question of jurisdiction to the Income-tax Commissioner under Section 64(3). Further, it is urged that the question whether the applicant is chargeable with income-tax amounts to a denial of his liability to be assessed under the Act, and he could file an appeal under Section 30 of the Income-tax Act, and ho has done so. This Court therefore, should not it this stage exercise its extraordinary powers in favour of the applicant.

4. We shall first consider the objection as to the jurisdiction of the, Income-tax Officer, Ajmer, who issued notice under Section 34. Section 64 provides for the place of assessment, and when the applicant is raising the question of jurisdiction, he is relying on the provisions of Section 64. Sub-section (1) of Section 64 provides that where an assessee carries on a business, profession or vocation at any place, he shall be assessed by the Income-tax Officer of the area in which that place is situate, or where the business, profession or vocation is carried on in more places than one, by the Income-tax Officer of the area in which the principal place of his business, profession or vocation is situate.

Sub-section (2) provides that in all other cases an assessee shall be assessed by the Income-tax Officer of the area in which he resides. Sub-section (5)(b) provides that the provisions of Sub-section (1) and Sub-section (2) shall not apply where by any direction given or any distribution or allocation of work made by the Com-missioner of Income-tax under Sub-section (5) of Section 5, or in consequence of any transfer made under Sub-section (7-A) of Section 5, a particular Income-tax Officer has been charged with the function of assessing that assessee. '

The case of the Income-tax Department is that notice was issued to the applicant by the Income-tax Officer, Ajmer, by virtue of a notification under Sub-section (5) of Section 5. We do not think it necessary for present purposes to consider whether the Income-tax Officer, Ajmer, could issue a notice to the applicant under Section 34 by virtue of the notification which has been issued under Section 5(5).

The reason for this is that the applicant is barred from raising the question of the place of assessment (this is what he means by saying that the Income-tax Officer, Ajmer, had no jurisdiction to issue notice to him) by the second proviso to Section 64(3). It is, therefore, necessary to set out Section 64(3) which is as follows--.

'Where any question arises under this section as to the place of assessment, such question shall be determined by the Commissioner, or where the question is between places in more States than one, by the Commissioners concerned, or, if they are not in agreement, by the Central Board of Revenue:

'Provided that, before any such question is determined, the assessee shall have had an opportunity of representing his views:

'Provided further that the place of assessment shall not be called in question by an 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 wherein he carries on his business, profession or vocation, or if he has not made such a return shall not be called in question after the expiry of the time allowed by the notice under Sub-section (2) of Section 22 or under Section 34 for the making of a return:

'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 assessment is made.'

5. Shorn of the involved language in which this sub-section appears, the provisions which it makes are these-

1. If any dispute arises as to the place of assessment, such question shall be determined not by the Income-tax Officer, but by the Commissioner, or other higher authority.

2 The Income-tax Officer may accept the contention that the place of assessment is not within his Circle. If he does not accept this contention, he has to refer the matter to the Commissioner or other higher authority.

3 The Commissioner or other higher authority must give a hearing to the assessee before deciding any matter referred to him about the place of assessment.

4 The objection as to the place of assessment can-not be made at all if the assessee, in response to ageneral notice under Section 22(1), has filed a return, andhas stated therein the principal place wherein hecarries on his business, profession or vocation. Butwhere an assessee makes no return under Section 22(1) inresponse to a general notice, but has received, whatwe may call a special notice under Sub-section (2) of Section 22,or under Section 34, the place of assessment can only be called in question up to the time mentioned in the notice under Section 22(2), or Section 34 for making a return, and not thereafter.

6. In this case, the assessee did not file any return in response to the general notice under Section 22(1) and therefore his case is governed by the second part of the second proviso, which lays down that where an assessee has received a notice under Section 34, and wants to take an objection as to the place of assessment, he must do so before the period fixed in the notice for making a return expires.

In this case, the assessee received a notice under Section 34, and was allowed time up to the 1-5-1954, to make a return. He had, therefore, the right to object to the place of assessment up to the 1-5-1954. If he did not object to the place of assessment till then, the second part of the second Proviso bars any such objection. In the present case, it is not in dispute that the applicant did not object to the place of assessment (or what he calls the jurisdiction of the Income-tax Officer, Ajmer) within the time allowed.

He could not, therefore, be heard to object to the place of assessment (or what he calls the jurisdiction of the Income-tax Officer, Ajmer) after that date. His objection, therefore, as to the place of assessment in March, 1955, was barred by the second part of the second proviso. The Income-tax Officer, therefore, was not bound to refer the question to the Commissioner or higher authority under the third proviso.

7. It seems to us that the intention of the Legislature in making these provisions was that the place of assessment should only be called in question in a limited class of cases and within a limited time, and if it was not called in question within that time, the objection as to the place of assessment could not be taken at all.

This is based on the principle that it makes no difference, provided a man is assessable, whether he is assessed by Income-tax Officer at place A or Income' tax Officer at place B, and that if he wants to object to his assessment at a particular place he must do so within a very limited time. If he tails to do so within that limited time, he would not be heard to object to the place of assessment.

8. As the applicant did not object as to the place of assessment within the time allowed to him, he cannot be heard to raise the question of place of assessment at all in view of the second proviso to Section 64(3). In this state of affairs, we do not think it necessary to go into the question whether the notification under Section 5, Sub-section (5), under which the Income-tax Officer, Ajmer, is said to have given notice to the applicant, does really confer power on the Income-tax Officer to assess the applicant.

If the applicant had any objection that the Income-tax Officer Ajmer's office was not the place of assessment for him, he should have taken that objection on or before the 1-5-1954, and as he did not do so, he is barred from raising that objection for ever, and cannot raise it as a ground in support of an application for a writ under Article 226. We are, therefore, of opinion that in view of the second proviso to Section 64(3), the applicant cannot raise any objection as to the place of assessment, and his writ application based on the plea as to the place of assessment (which he calls the jurisdiction of the Income-tax Officer, Ajmer) must fail.

9. We may in this connection refer to a number of cases in support of the view we have taken of the second proviso to Section 64(3).

10. In Wallace Brothers & Co.; Ltd., v. Commr.of Income-tax, Bombay Sind and Baluchistan , the Federal Court hasheld that the determination of the proper place of assessment is a matter more of administrative conveniencethan of jurisdiction, and in any event it is not one foradjudication by the Court; and the scheme of the Actdoes not contemplate an objection as to the place ofassessment being raised on an appeal against the assessment after the assessment has been made.(11) In Talchar Sabai Grass Trading Co., Ltd. v.Commr. of Income-tax B&O; 1947 ITR 455 the Patna High Court has held that under Section 64of the Indian Income-tax Act, 1922, the question asto the place of assessment has to be determined before the assessment is made. An objection as to theplace of assessment cannot be raised for the first timeon appeal against the assessment after the assesmenthas been made. Where no objection to the place ofassessment or to the assessing officer was raised by anassessee before the Income-tax Officer, the appellateauthorities would be entitled to overrule the attemptof the assessee to raise it after the assessment hadbeen made.

12. In U.C. Rekhi v. Income-tax Officer 1st 'F'Ward, New Delhi the Punjab High Court held that the place ofassessment of an assessee is a matter which under Section 64of the Indian Income-tax Act is to be decided by theIncome-tax Commissioner, and not by the Courts'.

13. On the other hand, learned counsel for the applicant relied on Davaldas Kushiram v. Commr. of Income-tax. Central : [1940]8ITR139(Bom) . It is enough to say that that is not a case in which the second proviso to Section 64(3) was applicable. We may say with respect that we have doubts about the correctness of that decision; but assuming it to be correct, that case has no application to the present case where the second proviso to Section 64(3) applies with full force.

14. Learned counsel for the applicant also referred to The King v. Commrs. for the General Purposes of the Income-tax for Kensington 1914 3 KB 429 , on the question of the jurisdiction of an In-come-tax 'Officer. It is enough to say that the law in England is apparently different and there is nothing analogous to the second proviso to Section 64(3) there.

15. A review of these authorities only confirms us in the decision at which we have arrived. It is enough to say that there is no difference in principle whether the objection as to the place of assessment is raised in appeal or before the Income-tax Officer, but after the time fixed in the second proviso to Section 64 (3) has expired. In either case the objection is not entertainable, and the place of assessment cannot be questioned.

16. Then we come to the last point raised on behalf of the applicant, namely that he is not liable to income-tax under the Act. So far that is concerned, it is enough to say that the applicant has already been assessed. He has a remedy by way of appeal under Section 30 of the Income-tax Act in so far as he denies his liability or raises other objections as to the amount of the tax assessed on him and so on. He has already filed an appeal against the order of the Income-tax Officer, which is still pending.

We are of opinion that, in such circumstances, we should not intervene at this stage. The Income-tax Act provides remedies against wrong assessment. There is first an appeal to the Appellate Assistant Commissioner under Section 30.

Then there is an appeal from the Assistant Appellate Commissioner to the Appellate Tribunal under Section 33. Thereafter, if an assessee is dissatisfied with the decision of the Appellate Tribunal on any question of law, he can apply to the Tribunal to refer the question of law to the High Court under Section 66, The Appellate Tribunal can then state a case to the High Court.

If the Appellate Tribunal refuses to state a case to the High Court, the assessee can apply to the High Court also under Section 66 to direct the Appellate Tribunal to state a case. It seems to us highly improbable that we should intervene at this stage when an assessment has been made by the Income-tax Officer and when so many remedies are open to the applicant, and he has -- not exhausted them.

17. It was contended on behalf of the applicant that as this case raises the question of jurisdiction, and a writ of prohibition will have to issue, we should not refuse to issue such a writ simply because there are other remedies open to the applicant. It is enough to say that the applicant cannot in view of the provisions of Section 64(3), second proviso, raise any objection as to the place of assessment which is the only question of jurisdiction that he has raised in this case.

In these circumstances, there is, in our opinion, no reason for us to intervene at this stage when there are so many remedies still open to the applicant under the Income-tax Act. Nor does it seem desirable on general principle to intervene in the middle like this when other remedies are undoubtedly open to the applicant.

18. Learned counsel for the applicant drew our attention to Himmatlal Harilal v. State of Madhya Pradesh, : [1954]1SCR1122 and relies on the following observations in that case at page 406 by the Lordships while referring to the State of Bombay v. The United Motors (India) Ltd. : [1953]4SCR1069 .

'There it was held that the principle that a Court will not issue a prerogative writ when an adequate alternative remedy was available could not apply where a party came to the court with an allegation that his fundamental right had been infringed and sought relief under Article 226. Moreover the remedy provided by the Act is of an onerous and burdensome character. Before the appellant can avail of it he has to deposit the whole amount of the tax. Such a provision can hardly be described as an adequate alternative remedy'.

Learned counsel urges that in this case also he has to deposit the tax in case he pursues his remedy under the Income-tax Act, and therefore that is not an adequate alternative remedy. It is also urged that he is being deprived of his money by being forced to pay this income-tax, and therefore his fundamental right to hold his property is being jeopardized.

19. We are of opinion that these observations must be taken in conjunction with the facts in Himmatlal Harilal Mehta's case (F). In that case, it was held that a certain provision of the C. P. and Berar Sales Tax Act was ultra vires. In spite of that the Nagpur High Court refused to grant a writ on the ground that an alternative remedy was available under the Act itself.

The Supreme Court did not agree with this in the circumstances of that case. They were of the view that the right of the applicant to carry on a trade was effected by the provisions of the Sales Tax Act. They further held that the Act provided for deposit of the tax before appealing, and that was onerous. The Income-tax makes no such provision for deposit of the tax before an appeal could be filed.

Further, it cannot be said that merely because the applicant has to pay a tax, and is being deprived of his money, and therefore his fundamental right is being effected. Further, in that case, the Nagpur High Court held that a certain provision of the law was ultra vires, and still refused to give relief which properly followed from such declaration. That, in our opinion, is the important circumstance which distinguishes Himmatlal Harilal Mehta's case (F).

The applicant has not contended before us that any part of the Income-tax Act is ultra vires, and in consequence he is entitled to any remedy. It would have been a different matter if we had held that any part of the Income-tax was ultra vires, for in that case we would give relief to the applicant as it is not possible for authorities constituted under the Income-tax Act to give him relief by holding any part of the Act ultra vires.

But where as in this case no part of the Act is being attacked, there is, in our opinion, no justification for us to intervene at this stage when other re-medics which arc not necessarily onerous are still open to the applicant under the Act. We, therefore, refuse to intervene at this stage in this case, and leave it to the applicant to pursue his remedies under the Income-tax Act so far as the question of his charge-ability to income-tax under the Act, or other matters are concerned.

20. The application is hereby dismissed withone set of costs to the opposite parties.


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