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Kistoor Mall and anr. Vs. C.P. Singh, Income-tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Writ Petition No. 140 of 1967
Judge
Reported in[1983]140ITR95(Raj)
ActsIncome Tax Act, 1922 - Sections 5(5), 5(7A), 6(5), 34, 64 and 64(5); Income Tax Act, 1961 - Sections 124, 124(1), 147, 148 and 297(2)
AppellantKistoor Mall and anr.
RespondentC.P. Singh, Income-tax Officer and ors.
Appellant Advocate L.R. Mehta and; R. Mehta, Advs.
Respondent Advocate H.M. Parekh, Adv.
Cases Referred and Marghabhai Babarbhai Patel v. R.M. Parikh
Excerpt:
- - 14. in order to understand the implications of this ground as well as ground no. (iii), one must first try to find out what is exactly meant by jurisdiction in the context of a quasi-judicial tribunal like an ito acting under the old act, or even under the new act. , the courts, rather than in relation to an administrative tribunal like an ito. other relevant provisions in the old act as well as the new act dealing with assessment (see sections 22, 23 and 34 of the old act and sections 139, 143 and 147-151 of the new act) vest power or authority to make an order of assessment or reassessment in' the income-tax officer' and not merely 'the income-tax officer of the area'.income-tax officer',as defined in section 2(7) of the old act. this fact-situation clearly attracts the.....sidhu, j.1. kistoormall and gyanmal, sons of kanmal nahta, filed the present writ petition under articles 226 and 227 of the constitution of india on march 17, 1967, against the ito, central circle-i, jaipur, commissioner of income-tax, delhi and rajasthan, at new delhi, and the union of india, respondents nos. 1, 2 and 3, respectively, for bringing up and quashing the notices, ex. h-i to h-5, dated march 21, 1963, issued to their father, kanmal nahta, deceased, by the ito, special investigation circle-a, jaipur (hereafter called 'the jaipur ito'), under section 148 of the i.t. act, 1961 (hereafter called 'the new act') for the assessment years 1946-47 to 1950-51, and for an injunction restraining the respondents from taking any proceedings against the petitioners on the basis of the said.....
Judgment:

Sidhu, J.

1. Kistoormall and Gyanmal, sons of Kanmal Nahta, filed the present writ petition under articles 226 and 227 of the Constitution of India on March 17, 1967, against the ITO, Central Circle-I, Jaipur, Commissioner of Income-tax, Delhi and Rajasthan, at New Delhi, and the Union of India, respondents Nos. 1, 2 and 3, respectively, for bringing up and quashing the notices, Ex. H-I to H-5, dated March 21, 1963, issued to their father, Kanmal Nahta, deceased, by the ITO, Special Investigation Circle-A, Jaipur (hereafter called 'the Jaipur ITO'), under Section 148 of the I.T. Act, 1961 (hereafter called 'the new Act') for the assessment years 1946-47 to 1950-51, and for an injunction restraining the respondents from taking any proceedings against the petitioners on the basis of the said notices.

2. A few facts, which are material for the decision of this petition, may be recapitulated here. Kanmal Nahta, who died on June 26, 1964, was an assessee within the jurisdiction of 3rd ITO, C-III Ward, Bombay, till the assessment year 1950-51. It appears he closed his business at Bombay and shifted his residence to Jodhpur some time in the year 1949. He was being assessed by the ITO, D-Ward, Jodhpur (hereafter called the 'Jodhpur ITO'), till the assessment year 1957-58. In 1957, an additional ITO was posted to D-Ward, Jodhpur. Kanmal Nahta fell in the category of assessees who were transferred to the jurisdiction of the additional ITO, D-Ward, Jodhpur (hereafter called the 'Jodhpur Addl. ITO'), with effect from the assessment year 1958-59. Thus, Kanmal Nahta was being assessed by the Jodhpur Addl. ITO till 1962. On January 9, 1962, the Jodhpur Addl. ITO sent the file of this assessee to the Jodhpur ITO, on the ground that the assessee was likely to attract the wealth-tax liability and that, therefore, his assessment should be dealt with by the latter as all cases attracting wealth-tax liability were being dealt with by him. On January 10, 1962, the Jodhpur ITO sent a detailed letter to Kanmal Nahta, stating that he had concealed his income chargeable to tax from 1940-41 to 1949-50, and requiring him to explain why action under Section 34(1)(a) of the Indian I.T. Act, 1922 (hereinafter called the 'old Act'), be not taken against him. On March 26, 1962, the Jodhpur ITO issued notices to Kanmal Nahta under Section 34 of the old Act in respect of the assessment years 1940-41 to 1949-50. According to the petitioner, Gyanmal, these notices were served (see in this connection his application dated April 23, 1981, affidavit of even date and copy of lawyer's reply to these notices) on Kanmal Nahta on March 29, 1962. Two days after the service of the notices on Kanmal Nahta, the new Act came into force on April 1, 1962. In exercise of his powers under Sub-section (1) of Section 127 of the new Act, the Commissioner, Delhi and Rajasthan, passed an order, dated June 26, 1962, transferring the cases arising out of the said notices from the Jodhpur ITO to the Jaipur ITO. On November 3, 1962, Kanmal Nahta filed returns of income under protest for the assessment years 1946-47 to 1949-50, before the Jaipur ITO. The returns were filed with a covering letter of objection stating that the Jodhpur ITO 'had no authority or jurisdiction to act in relation to the assessee's case and the notice issued by him was void ab initio'. The Jaipur ITO disposed of these cases on January 19, 1963, and communicated his decision to Kanmal Nahta, vide letter, Ex.-C, which reads as under :

3. I am glad to inform you that the proceedings under Section 34 of the Income-tax Act, 1922, initiated against you for the years 1940-41 to 1949-50 are being hereby dropped.

4. On January 19, 1963, itself, the Jaipur ITO addressed another letter (copy Ex. D), to Kanmal Nahta, stating, inter alia, that his income chargeable to tax which had escaped assessment for the assessment years 1946-47, 1947-48, 1948-49 and 1949-50, by reason of its concealment by him amounted to more than Rs. 50,000 for each year, and requiring him to explain why action should not be taken against him for reassessment of his income for these years in accordance with the provisions of Section 147 of the new Act. Earlier, on January 15, 1963, a similar letter (see Ex. E) had been sent to the assessee in respect of the assessment years 1950-51 and 1951-52. These letters were followed by the issue of the impugned notices (Ex. H-1, H-2, H-3, H-4 and H-5), dated March 21, 1963, to Kanmal Nahta under Section 148 of the new Act relating to the assessment years 1946-47, 1947-48, 1948-49, 1949-50 and 1950-51, respectively. These notices are in identical terms. We may reproduce here only one of them as typical of all. The notice (H-1) relating to the assessment year 1946-47 reads as under:

5. Whereas I have reason to believe that your income chargeable to tax for the assessment year 1946-47 has escaped assessment within the meaning of Section 147 of the Income-tax Act, 1961;

6. I, therefore, propose to reassess the income for the said assessment year and I hereby require you to deliver to me within 30 days from the date of service of this notice, a return in the prescribed form of your income assessable for the said assessment year.

2. This notice is being issued after obtaining the necessary satisfaction of the Central Board of Revenue.

Sd. Anand Prakash,

Income-tax Officer,

Special Investigation Circle, 'A'

Jaipur.

SEAL

Office of the

Income-tax Officer,

Special Investigation Circle 'A',

Jaipur.

7. The writ petition was admitted by a Division Bench of this court on March 23, 1967, This court further directed respondents Nos. 1 and 2 to stay proceedings of assessment on the basis of the notices, Ex. H-1 to Ex. H-5. The Jaipur ITO (i.e., respondent No. 1) passed reassessment orders pursuant to these notices for the assessment years 1946-47 to 1950-51 on March 24, 1967. These orders led the petitioners to amend the writ petition. They filed the amended petition on March 23, 1968. In addition to the relief prayed originally for quashing the notices, Ex, H-1 to Ex. H-5, the petitioners prayed that the assessment orders passed on the basis of the said notices on March 24, 1967, be also quashed and that the respondents be restrained from realising from the petitioners any amount on the basis of the impugned orders of assessment.

8. The petitioners also challenged the reassessment orders by way of respective appeals filed before the AAC, Jaipur Range, Jaipur, on April 24, 1967. By his order dated January 31, 1969, the AAC allowed the appeals, quashed the impugned orders of reassessment for the assessment years 1946-47 to 1950-51, and remanded all the five cases to the Jaipur ITO for making reassessment de novo according to law after giving the appellants 'proper hearing'. The petitioners filed an application, dated September 15, 1975, in this court with a view to bringing to the notice of the court that the appeals in question had been decided as far back as January 31, 1969, and that the proceedings for making reassessment have since been pending with the Jaipur ITO. We are informed at the bar that the ITO has not so far made any order of reassessment in respect of any of the years from 1946-47 to 1950-51.

9. The petitioners have challenged the notices, Ex. H-1 to Ex. H-5, issued by the Jaipur ITO under Section 148 of the new Act and the orders of reassessment made on the basis of these notices on a number of grounds. Now that the orders of reassessment have already been quashed by the AAC as mentioned above, the challenge survives, in effect, only in relation to the notices, Ex. H-1 to H-5. The grounds of challenge may be summarised here as follows:

(i) The original orders of assessment in respect of the assessment years 1946-47 to 1950-51 were made by the ITO, C-III Ward, Bombay. No order was made by the Central Board of Revenue transferring any of these cases from the ITO, C-III Ward, Bombay, to the Jodhpur ITO or the Jaipur ITO. Hence, the notices, Ex. H-1 to Ex. H-5, issued by the Jaipur ITO were issued without jurisdiction.

(ii) Reassessment in respect of the assessment years 1946-47 and 1947,48 had already become barred by limitation when the new Act came into force.

(iii) Notices under Section 34 of the old Act were issued before, and proceedings under that section were pending at, the commencement of the new Act. Therefore, by virtue of the provisions of Section 297 of the new Act, more specially Sub-clause (ii) of Clause (d) of Sub-section (2) of this section, notices, Ex. H-1 to Ex-5, could not be issued lawfully under the new Act. Hence, the said notices are illegal, invalid and without jurisdiction.

10. The respondents contested the writ petition and filed a return with supporting-affidavit in answer to it. They pleaded that since Kanmal Nahta had closed his business at Bombay on October 17, 1949, and thereafter taken up residence at Jodhpur and had been filing returns at Jodhpur since the assessment year 1951-52, the Jodhpur ITO had acquired jurisdiction in the matter to issue notice under Section 34 of the old Act in respect of the assessment years prior to the year 1951-52, They further pleaded that Kanmal Nahta filed returns of his income for the assessment years, 1946-47 to 1950-51, before the Jaipur ITO in pursuance of the notices, Ex. H-1 to Ex. H-5, without raising any objection to his jurisdiction within a period of one month from the date of filing the returns, and, therefore, he or his heirs cannot call in question the jurisdiction of the Jodhpur ITO, or, for that matter, of the Jaipur ITO, to issue notice under Section 34 of the old Act or Section 148 of the new Act.

11. The respondents admitted that the Jodhpur ITO had issued notices under Section 34 of the old Act in respect of the assessment years 1940-41 to 1949-50. They, however, pleaded that all these notices were void ab initio since the Jodhpur ITO had no jurisdiction to issue them. According to the respondents, the jurisdiction to issue such notice in respect of Kanmal Nahta vested in the Jodhpur Addl. ITO to the exclusion of the Jodhpur ITO by virtue of an order dated October 15, 1959, made by the Commissioner, Delhi and Rajasthan, in exercise of his powers under Section 5(5) of the old Act. The respondents admitted that the proceedings under Section 34 of the old Act which were pending at the time of the commencement of the new Act had been dropped by the Jaipur ITO to whom the cases had been transferred in the meantime, because, according to the respondents, the Jodhpur ITO who initiated the proceedings under Section 34 had no jurisdiction to do so and as such the proceedings were void and non est. Elaborating this plea further, the respondents pleaded that since the proceedings under Section 34 of the old Act which were pending at the commencement of the new Act were void ab initio and therefore, non est, they could not be treated as proceedings pending at the commencement of the new Act, and, as such, notices under Section 148 of the new Act could be legally issued even in respect of the assessment years 1946-47 to 1949-50. They explained that no notice under Section 34 of the old Act had ever been issued in respect of the assessment year 1950-51, and, therefore, no proceedings under that section could be pending relating to that year at the commencement of the new Act. The notice under Section 148 of the new Act as respects 1950-51, according to them, is not open to objection at all. They pleaded that the impugned notices had been issued within the period prescribed by law.

12. The respondents also raised an objection to the effect that since an alternative efficacious remedy by way of appeal is available to the petitioners and they have already taken resort to that remedy, this writ petition is liable to be dismissed on that ground alone. They also pleaded that the writ petition suffers from the vice of long delay, laches and acquiescence.

13. After hearing both the sides at some length and considering the matter in all aspects, we are of opinion that the decision in the controversy turns mainly on the grounds of challenge by the petitioners summarised at Nos. (i) and (iii) at pp. 6 and 7 of this judgment. Ground (i) is to the effect that since the original orders of assessment for the years 1946-47 to 1950-51 had been made by the ITO, C-III Ward, Bombay (hereinafter called 'the Bombay ITO'), and since no order under Sub-section (7A) of Section 5 of the old Act had been passed by the CBR transferring any of these cases from the Bombay ITO to the Jodhpur ITO, the latter and, for that matter, the Jaipur ITO also, had no jurisdiction to issue notices under Section 34 of the old Act and Section 148 of the new Act, respectively, for reassessment of the alleged escaped income of the assessee in any of those years.

14. In order to understand the implications of this ground as well as ground No. (iii), one must first try to find out what is exactly meant by jurisdiction in the context of a quasi-judicial tribunal like an ITO acting under the old Act, or even under the new Act. Jurisdiction is a legal concept which is relatively easier to explain and understand in relation to its native soil, i.e., the courts, rather than in relation to an administrative tribunal like an ITO. Even in relation to courts, jurisdiction is a chameleon-hued word which keeps on changing its meanings with the change of context and subject-matter to which it is directed. Quite often, we find courts using this term to connote no more than what would more appropriately be described as venue or place of suing. There is a clear distinction between jurisdiction and venue. Jurisdiction is defined in Halsbury's Laws of England, Fourth Edn., vol. 10, Article 715, as follows :

'By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted and may be extended or restricted by similar means.'

15. A limitation may be imposed by law on the authority of a court as to : (i) subject-matter, or (ii) persons, or (iii) pecuniary value of the cause or (iv) venue or place or any two or more of these characteristics. The limitation regarding venue or place may or may not affect the jurisdiction of the court. If the limitation of venue or place is fundamental, as distinguished from procedural, as, for example, when jurisdiction is conferred by statute only with reference to a particular area, the question of venue becomes a question of jurisdiction itself. If, on the other hand, the so-called limitation is one of procedure and not jurisdictional, as, for example, when a statute or statutory rules provide for distribution and allocation of work by a superior authority among his subordinates, it is generally a limitation of convenience for the benefit of the parties; and the party concerned in such a situation may require that the case against him shall be heard and determined at the place fixed according to the procedural rules or law. It is equally open to such a party to waive this benefit. The authors of Corpus Juris Secundum (see 21 C.J.S. Courts Section 15) have explained the distinction between jurisdiction and venue in a paragraph which may be quoted here with advantage:

'The distinction between 'jurisdiction' and 'venue' has been plainly established and has been frequently recognised. Jurisdiction connotes the power to decide a case on the merits, while venue connotes locality, the place where the suit should be heard. The word 'venue', unless it is given jurisdictional effect by localising the action, relates only to the place where or the territory within which either party may require the case to be tried, and unless it is a localised action, the question of jurisdiction of subject-matter is not involved. 'Venue' as a matter of procedure does not arise until an action is started. The mere existence of general rules of venue, whether in common law, or statutory form, does not, of itself, affect the right of the court to hear and determine foreign causes.'

16. To sum up, therefore, we must bear in mind that there is a real distinction between 'jurisdiction' and 'venue' or place of assessment as involved in the instant case. Jurisdiction is the power of an ITO to make an order of assessment or reassessment. If a person, not appointed as ITO according to law, arrogates the power to make an order of assessment, such order would be treated as null and void and non-existent in the eye of law. Lack of jurisdiction in this sense cannot be waived. This is because jurisdiction, properly so called, cannot be conferred by the parties on a person lacking it. Venue or place of assessment, which does not possess jurisdictional effect and, therefore, does not operate to 'localise' the action, may be waived by the party concerned.

17. Reading Section 64 of the old Act, which carries the marginal heading 'place of assessment', and Section 124 of the new Act, which carries the marginal heading 'jurisdiction of Income-tax Officer', one finds that notwithstanding the use of the expression 'jurisdiction' in Section 124, the two sections, in fact and substance, deal with venue (place of assessment) without giving venue any jurisdictional effect, as explained above. There is nothing in these sections which may be legitimately construed as 'localising' assessment. These sections do not operate to restrict the power of an ITO to make an order of assessment to a particular area to the exclusion of the other area. Other relevant provisions in the old Act as well as the new Act dealing with assessment (see Sections 22, 23 and 34 of the old Act and Sections 139, 143 and 147-151 of the new Act) vest power or authority to make an order of assessment or reassessment in' the Income-tax Officer' and not merely 'the Income-tax Officer of the area'. 'Income-tax Officer', as defined in Section 2(7) of the old Act. means a person appointed to be an ITO under Section 5. Similarly, the new Act also defines 'Income-tax Officer' to mean a person appointed to be an Income-tax Officer under Section 117. Under Section 5 of the old Act and Section 117 of the new Act, the Central Government may appoint as many ITOs of Class I Service as may be sanctioned by the Central Govt. Once a person is appointed as ITO according to law, he is automatically vested with the power to make orders of assessment and exercise other functions of an ITO under law. Of course, it is left to the Commissioner to allocate work to different ITOs subordinate to him. Section 5(5) of the old Act and Section 124(1) of the new Act provide for such allocation laying down that ITOs shall perform their functions in respect of such areas or of such persons or classes of persons or of such incomes or classes of income or of such cases or classes of cases as the Commissioner may direct. This allocation does not deprive an ITO of his general power under law to function as an ITO beyond the work allocated to him by the Commissioner, That is why, perhaps, the Legislature took care to specifically provide in Section 64 of the old Act and Section 124 of the new Act that the place of assessment shall not be called in question by an assessee after the expiry of time allowed by notice issued according to law. Had venue or place been a question pertaining to jurisdiction, the mere absence of objection to jurisdiction by the assessee within a particular period of time would not have conferred jurisdiction. It is obvious on a plain reading of these sections that they deal with venue or place of assessment as contradistinguished from jurisdiction.

18. A reference to Wallace Brothers & Co. Ltd. v. CIT [1945] 13 ITR 39 Seth Teomal v. CIT : [1959]36ITR9(SC) and Gajanand Phool Chand v. ITO [1975] WLN 965 ; [1976] Tax LR 48 (Raj) would confirm the conclusion arrived at above. The Federal Court held in Wallace Brothers & Co. Ltd., that the matter (i.e., venue or place of assessment dealt with by Section 64 of the old Act) is one more of administrative convenience than of jurisdiction and that in any event it is not one for adjudication by the court.

19. Relying on Wallace Brothers & Co. and Seth Teomal, a Division Bench of this court held in Gajanand Phool Chand [1976] Tax LR 48 (Raj) that lack of what the Bench described as 'territorial jurisdiction' of an ITO would not amount to an inherent lack of jurisdiction so as to render a notice issued by such ITO null and void. The Division Bench also held that notwithstanding the use of the word 'jurisdiction' in Section 124 of the new Act this section was no different in substance from Section 64 of the old Act and that both of these sections deal with 'territorial jurisdiction' as distinguished from 'inherent jurisdiction'.

20. We may, therefore, safely conclude that Section 64 of the old Act and Section 124 of the new Act do not deal with jurisdiction properly so called. They have nothing to do with jurisdiction which in the context means power to make an order of assessment or reassessment. On the other hand, they merely deal with venue or place of assessment. Objection to venue or place of assessment may be waived, but a want of jurisdiction in the strict sense can never be waived.

21. Bearing the above discussion regarding jurisdiction and venue in mind, we may now proceed to examine the question whether the Jodhpur ITO had jurisdiction to issue notice under Section 34 of the old Act in respect of income escaping assessment in a particular year of assessment for which the original order of assessment had been made by the Bombay ITO. It will be seen that Section 34 gives jurisdiction to issue such notice to 'the ITO' and not merely to 'the ITO of the area'. The. Jodhpur ITO who issued the notices under Section 34 of the old Act and the Jaipur ITO who issued the notices under Section 148 of the new Act were both ITOs appointed according to law. They had, therefore, the jurisdiction to issue these notices regardless of the fact that the original orders of assessment had been made by the Bombay ITO. Moreover, the assessee in this case who received the notices issued under Section 34 of the old Act by the Jodhpur ITO on March 29, 1962, did not file the return till November 3, 1962. In other words, he did not file the return within the period prescribed by the notice. That being so, he stood precluded by Section 64(3) (second proviso) of the old Act from calling in question the place of assessment according to Section 34 read with other relevant provisions of the old Act.

22. It may also be mentioned here that the assessee had admittedly closed his business at Bombay in 1949 and returned to Jodhpur where he took up residence in that year. He continued residing at Jodhpur till the notices under Section 34 of the old Act were issued to him in March, 1962. He had been filing annual returns of income before the Jodhpur ITO from 1951-52 to 1958-59 and the orders of assessment for all these years had been made by the Jodhpur ITO. In other words, the Jodhpur ITO was 'the ITO of the area in which he resides', within the ambit of this phrase as used in Section 64 of the old Act. Even from the limited standpoint of 'venue' or 'place of assessment' also, therefore, the Jodhpur ITO had the jurisdiction to issue these notices.

23. It is true that no order under Section 5(7A) of the old Act appears to have been made by the CBR in respect of this assessee for the assessment years 1946-47 to 1950-51, transferring this case from the Bombay ITO to the Jodhpur ITO. Jurisdiction of the Jodhpur ITO to issue notice under Section 34 of the old Act was, however, not dependent on such order alone. Absence of such order will not affect the jurisdiction of the Jodhpur ITO which, as discussed above, he possessed de hors such orders. Section 5(7A) of the old Act is a mere enabling provision which may not be read so as to deprive an ITO of his jurisdiction under law merely because no formal order had been made under Section 5(7A) transferring a particular case to him.

24. Reference may also be made in this connection to the fact that the notices under Section 34 of the old Act must have been issued after obtaining the necessary satisfaction of the CBR to the effect that such notices deserved to be issued. It may be legally presumed that the Board had expressed such satisfaction before the notices in question were issued. The so-called defect as to the place of assessment must, therefore, be deemed to have been cured by the expression of such satisfaction by the Board prior to the issue of these notices by the Jodhpur ITO under Section 34 of the old Act.

25. For all these reasons, in the facts of this case, we hold that the Jodhpur ITO had jurisdiction under Section 34 of the old Act to issue notices of reassessment of the income escaping assessment in the years 1946-47 to 1950-51, even in the absence of an order by the CBR under Sub-section (7A) of Section 5 of the old Act transferring this case from the Bombay ITO to the Jodhpur ITO.

26. Turning now to the ground of challenge No. (iii) to the notices, Ex. H-1 to Ex. H-5, issued by the Jaipur ITO under Section 148 of the new Act, the precise argument raised on behalf of the petitioner is based on Section 297 of the new Act which deals with 'repeals and savings', and it is to the effect that since the notices under Section 34 of the old Act had been issued before the commencement of the new Act and that since the proceedings under Section 34 in respect of those notices had been pending at such commencement, the Jaipur ITO had no jurisdiction to issue fresh notices under Section 148 of the new Act in respect of the same assessment years about which proceedings were already pending at the commencement of the new Act pursuant to notices issued under Section 34 of the old Act. Now, it is common ground between the parties that no notice under Section 34 of the old Act had been issued by the Jodhpur ITO before the commencement of the new Act in respect of the assessment year 1950-51, and therefore, no proceedings under Section 34 were pending before the Jodhpur ITO relating to 1950-51 at the commencement of the new Act. That being so, notice, Ex. H-5, relating to the assessment year 1950-51, issued by the Jaipur ITO under Section 148 of the new Act, must be held to have been issued according to law. Its validity is not open to any objection at all.

27. The argument raised on behalf of the petitioners applies on all fours to the other impugned notices, viz., Ex. H-1 to Ex. H-4, for the assessment years, 1946-47 to 1949-50, respectively. It will be recalled that notices under Section 34 of the old Act relating to these years had already been issued by the Jodhpur ITO before the commencement of the new Act and that proceedings in respect of those notices were pending before him at such commencement. This fact-situation clearly attracts the provisions of Section 297 of the new Act. The relevant portions of this section read as under:

'297. Repeals and savings--(1) The Indian Income-tax Act, 1922 (XI of 1922), is hereby repealed.

(2) Notwithstanding the repeal of the Indian Income-tax Act, 1922 (XI of 1922) (hereinafter referred to as the repealed Act)--......

(d) where in respect of any assessment year after the year ending on the 31st day of March, 1940,--

(i) a notice under Section 34 of the repealed Act had been issued before the commencement of this Act, the proceedings in pursuance of such notice may be continued and disposed of as if this Act had not been passed ;

(ii) any income chargeable to tax had escaped assessment within the meaning of that expression in Section 147 and no proceedings under Section 34 of the repealed Act in respect of any such income are pending at the commencement of this Act, a notice under Section 148 may, subject to the provisions contained in Section 149 or Section 150, be issued with respect to that assessment year and all the provisions of this Act shall apply accordingly;...... '

28. It will be seen on a plain reading of Sub-clause (i) of Clause (d) of Sub-section (2) of this Section as reproduced above that if a notice had been issued under Section 34 of the old Act, before the commencement of the new Act, as in the instant case it had been so issued relating to the years 1946-47 to 1949-50, the proceedings in respect of such notice may be continued and disposed of as if the new Act had not been passed. In other words, the new Act will be deemed not to have been passed in respect of the proceedings under Section 34 of the old Act which were pending at the commencement of the new Act. Sub-clause (ii) of Clause (d) of Sub-section (2) reproduced above further confirms this conclusion in that it makes provision for notice under Section 148 to be issued only in respect of a year relating to which no proceedings under Section 34 of the old Act were pending at the commencement of the new Act.

29. It should, therefore, be clear that notices, Ex, H-1 to Ex. H-4, relating to the assessment years 1946-47 to 1949-50, could not be issued lawfully, under Section 148 of the new Act, which will be deemed not to have been passed for the simple reason that notices under Section 34 of the old Act relating to these four years had been issued before the commencement of the new Act and proceedings pursuant to those notices were pending at such commencement. Learned counsel for the Revenue, however, argued that the Jodhpur ITO who issued the notices under Section 34 of the old Act had no jurisdiction to issue them inasmuch as, so proceeds the argument, his jurisdiction had already been taken away by virtue of an order passed by the Commissioner concerned in exercise of his powers under Sub-section (5) of Section 5 of the old Act. According to the said order which was passed on October 15, 1959, and published in the Gazette of India, dated October 31, 1959, the Commissioner directed, inter alia, that the Jodhpur Addl. ITO shall exercise his functions in respect of persons whose last assessed income on the date of issue of the order did not exceed Rs. 10,000 and who under the previous orders were liable to assessment by the Jodhpur ITO. It appears that since the income of Kanmal Nahta, last assessed by the Jodhpur ITO, was less than Rs. 10,000, the Jodhpur Addl. ITO began to assess his income with effect from the assessment year 1960-61. As already stated, the Jodhpur Addl. ITO sent the file of this assessee back to the Jodhpur ITO on January 9, 1962, on the ground that the assessee was likely to attract the wealth-tax liability and that as all cases, attracting such liability, were required to be dealt with by the Jodhpur ITO, the case of this assessee should also be dealt with by him. Learned counsel for the Revenue argued that once the jurisdiction to assess the income of this assessee had been transferred, according to law, from the Jodhpur ITO to the Jodhpur Addl. ITO, the former ceased to have any jurisdiction to assess him and that such jurisdiction could only be revived by the Commissioner by means of an order passed in accordance with the provisions of Section 5(5) or 5(7A) of the old Act. Counsel further submitted that since no such order had been passed re-transferring the case from the Jodhpur Addl. ITO to the Jodhpur ITO, the latter had no jurisdiction to issue notices under Section 34 and that, therefore, the notices issued by him must be treated as void, non est and non-existent. Counsel cited Madhavnagar Cotton Mills v. Union of India, AIR 1968 Delhi 54 in support of his argument.

30. Learned counsel for the petitioners, on the other hand, argued that the Jodhpur ITO had jurisdiction to issue the notices under Section 34 of the old Act and that, in any event, the notices which were so issued in fact and which were factually pending at the commencement of the new Act cannot be wished out of existence by a process of reasoning on a metaphysical plane. Counsel cited S.B. Jain, ITO v. Mahendra : [1972]83ITR104(SC) R.B. Seth Gujar Mal Modi v. CIT : [1972]84ITR261(SC) and Ice and General Mills v. ITO : [1980]121ITR547(SC) in support of his argument. Before entering into a discussion as to the merits of the rival contentions, it may be mentioned here that the petitioners' case, as covered by grounds of challenge, enumerated at Nos. (i) and (iii) at pp. 6 and 7 of this judgment, suffers from a sort of contradiction. It will be seen that, in the context of ground No. (i), the petitioners' case is that since no order was made by the CBR transferring the case of the assessee from the Bombay ITO to the Jodhpur ITO or, for that matter, to the Jaipur ITO, the notices issued by the Jodhpur ITO and the Jaipur ITO under Section 34 of the old Act and Section 148 of the new Act, respectively, must be treated as being without jurisdiction and, therefore, null and void. When it came to ground No. (iii), the petitioner's learned counsel took a different stand and argued that the Jodhpur ITO had jurisdiction to issue notices under Section 34 of the old Act and that, therefore, the said notices cannot be described as absolute nullity and treated as non-existent. Of course, counsel did not press, in the context of his case on ground No. (iii), his earlier argument to the effect that in the absence of a transfer order by the CBR, the Jodhpur ITO did not acquire any jurisdiction to issue notices under Section 34. On the other hand, the thrust of his argument in the context of ground No. (iii) was that since by virtue of an order passed by the Commissioner under Section 5(5) of the old Act on October 15, 1959, the assessee was being assessed by the Jodhpur Addl. ITO instead of Jodhpur ITO from the assessment year 1960-61 onwards, and since no further order was made by the Commissioner or the CBR under Section 5(7A) transferring the case back to the Jodhpur ITO, the latter had no jurisdiction to issue the notices under Section 34 which he issued on March 26, 1962, and about which the proceedings were pending at the commencement of the new Act.

31. The aforementioned contradiction may not, however, detract from the strength of the petitioners' case on ground No. (iii), for it has already been held that even in the absence of an order by the CBR under Section 5(7A) of the old Act transferring the case from the Bombay ITO to the Jodhpur ITO, the latter had jurisdiction to issue notices under Section 34 in respect of the income of the assessee escaping assessment in the years 1946-47 to 1950-51. We may now proceed to discuss the rival arguments in the context of the contention, raised on behalf of the Revenue, to the effect that since no further order was made either by the Commissioner or the CBR, after the earlier order dated October 15, 1959, retransferring the case from the Jodhpur Addl. ITO to the Jodhpur ITO, the latter did not acquire any jurisdiction in respect of this assessee to issue notices under Section 34 of the old Act and that, therefore, such notices issued by the Jodhpur ITO on March 26, 1962, and served on the assessee on March 29, 1962, must be treated as null and void.

32. This argument raised on behalf of the Revenue is, in our opinion, based on a misconception of the scope and effect of the order dated October 15, 1959, made by the Commissioner in exercise of his powers under Section 5(5) of the old Act. The Revenue seems to think that this order made by the Commissioner under Section 5(5) is the same thing as an order of transfer which may be passed by him under Section 5(7A) and that makes no difference, in the net result, whether an order is made under one provision or the other. In our opinion, this thinking is not correct. An order of transfer made under Section 5(7A) would necessarily deal with a 'case' and for that matter with a particular assessee. So, if the case of a particular assessee is transferred under Section 5(7A) from one ITO to another, it may be correct to say, but we express no final opinion on it, that the transferee officer gets exclusive jurisdiction to assess him. This is so because of the provisions of Sub-section (5) of Section 64 which lays down that the provisions of Section 64(1) and (2) relating to a place of assessment shall not apply and shall be deemed never to have applied to any assessee where by any direction given or distribution or allocation of work made by the Commissioner under Section 5(5) or in consequence of any transfer made under Section 5(7A), a particular ITO has been charged with the function of assessing that assessee. In other words, if a particular officer has been charged according to law with the function of assessing a particular assessee, it may be legitimate to say that it is only the officer so charged, and none else, who has jurisdiction to make an order of assessment relating to such assessee. On the other hand, an order made by the Commissioner under Section5(5) may not have the effect of charging a particular officer with the function of assessing a particular assessee. If so, such an order will not attract the provisions of Section64(5) which have been enacted as an exception to the provisions of Section64(1), (2) and (3). The order made by the Commissioner under Section5(5) on October 15, 1959, in the instant case, clearly shows that it does not relate to any particular assessee. It is an order which, in terms, applies to all persons or classes of persons whose last assessed income does not exceed Rs. 10,000. That being so, the provisions of Section 64(5) are not attracted with the result that provisions of Section 64(1), (2) and (3) apply to this case with full force and the result, therefore, is that both the ITOs of the area, namely, the Jodhpur ITO and the Jodhpur Addl. ITO, were competent to assess the assessee. The Jodhpur ITO who had been assessing him without any limitation as to the extent of income till the assessment year 1959-60 continued to have such jurisdiction to assess even after the issue of the order by the Commissioner under Section 5(5) on October 15, 1959. The Jodhpur Addl. ITO who was authorised under the said order to exercise his functions relating to all persons or classes of persons whose income does not exceed Rs. 10,000 acquired such power to that extent concurrently with the Jodhpur ITO. It is significant to note that there is nothing in the order, dated October 15, which may legitimately be construed as taking away the jurisdiction of the Jodhpur ITO to assess the assessee in the instant case.

33. The above view based on the reading of the provisions of Sections 5(5) and (7A) and Section 64 of the old Act is in line with the view of a Division Bench of the Delhi High Court, presided over by K. S. Hegde C.J., who later adorned the Bench of the Supreme Court, expressed in Madhavnagar Cotton Mills v. Union of India, AIR 1968 Delhi 54 a ruling cited by the Revenue itself. Of course, the Revenue relied on this ruling in support of its argument that since the assessee's case had been transferred from the Jodhpur ITO to the Jodhpur Additional ITO by virtue of the Commissioner's order, dated October 15, 1959, the Jodhpur ITO ceased to have any jurisdiction to assess this assessee after the even date and that, therefore, the notices issued by the Jodhpur ITO under Section 34 of the old Act relating to this assessee on March 26, 1962, were without jurisdiction, null and void. A close reading of this ruling would reveal that the relevant order in that case had been passed by the Central Board of Revenue under Section 5(7A) of the old Act transferring the case of the particular assessee from the ITO, B-Ward, Sangli, to the ITO, Section 1 (Central), Bombay. It was on this premise that the Delhi High Court held that the case of a particular assessee had been transferred from the Sangli ITO to the Bombay ITO and, that therefore, the case was governed by the provisions of Section 64(5) to the exclusion of the provisions of Section 64(1) and (2) of the old Act. The Delhi High Court further held on this reasoning that the Bombay ITO acquired exclusive jurisdiction to assess the particular assessee and that the notice issued to him subsequently by the Delhi ITO under Section 148 of the new Act was without jurisdiction. It may be mentioned in this context that the Delhi ITO had issued the notice in question by virtue of a notification issued by the CBR under Section 5(6) of the old Act empowering the Delhi ITO to perform some functions in respect of classes of persons or classes of income or in respect of some area or areas. The Delhi High Court emphasised in this context the fact that the notification under Section 5(6) as issued in that case, could not possibly be equated with an order of transfer under Section 5(7A) and that in fact the CBR could not have transferred the case of an individual assessee from one ITO to another in exercise of its powers under Section 5(6) of the old Act. It was on these facts that the Delhi High Court held that a notice issued to the assessee by an officer other than the one to whom his case had been transferred is invalid.

34. Now, it has already been seen in the facts of the instant case that the case of Kanmal Nahta had never been transferred as an individual under Section 5(7A) from the Jodhpur ITO to the Jodhpur Additional ITO. What happened in this case was that the Commissioner issued a general order of allocation and distribution of work under Section 5(5) under which two ITOs acquired concurrent powers with a pecuniary limitation on the powers of one of them.

35. For all these reasons, Madhavnagar Cotton Mill's case, AIR 1968 Delhi 54, does not support the argument raised on behalf of the Revenue. On the contrary it lends support to the petitioner's case that, notwithstanding the general order, dated October 15, 1959, made by the Commissioner under Section 5(5), directing certain ITOs including the Jodhpur Addl. ITO to perform their functions in respect of all persons whose last assessed income on the date of issue of the order did not exceed Rs. 10,000. The Jodhpur ITO did not lose his jurisdiction to assess this assessee. As already explained, the Jodhpur ITO continued to possess his plenary jurisdiction to assess this assessee after October 15, 1959. In addition, the Jodhpur Addl. ITO was authorised to assess a particular class of income, i.e., incomes not exceeding Rs. 10,000. We have, therefore, no hesitation to hold that the Jodhpur ITO had jurisdiction to issue the notices under Section 34 of the old Act.

36. Before closing discussion on this aspect of the matter, we would like to reiterate our view, expressed earlier in the context of ground (i) that, in the facts of this case, the Jodhpur ITO had jurisdiction to issue the notices under Section 34 of the old Act in respect of the assessment years 1946-47 to 1950-51 even in the absence of an order under Section 5(7A) transferring the case of this assessee to him.

37. Viewed from any angle, therefore, the conclusion is inescapable that the notices under Section 34 had been issued to the assessee in respect of the assessment years 1946-47 to 1949-50, before the commencement of the new Act, that these notices were issued by the Jodhpur ITO in the lawful exercise of his jurisdiction under Section 34 and that the proceedings in respect of these notices were pending at the commencement of the new Act. That being so, the new Act will be deemed not to have been passed (see Section 297 of the new Act) in respect of these proceedings, and, therefore, the Jaipur ITO was not competent to issue the notices, Ex. H-1 to Ex. H-4, under Section 148 of the new Act, which was non-existent by virtue of a legal fiction, in respect of the same assessment years (i.e., 1946-47 to 1949-50) for which such proceedings were already pending at the commencement of the new Act.

38. The law laid down by the Supreme Court in S.B. Jain, ITO v. Mahendra : [1972]83ITR104(SC) R.B. Seth Gujar Mal Modi v. CIT : [1972]84ITR261(SC) and Ice and General Mills v. ITO : [1980]121ITR547(SC) applies on all fours to the facts of this case. In the Ice and General Mills case the Supreme Court held that Section 297(2)(d)(ii) of the new Act is concerned with factual pendency of the proceedings under Section 34 of the old Act and not their legality and that if such factual pendency is shown to exist, it will not be competent to an ITO to issue notice under Section 148 of the new Act.

39. In view of the foregoing discussion, we hold that the Jaipur ITO had no jurisdiction to issue the impugned notices, Ex. H-1 to Ex. H-4, in respect of the assessment years, 1946-47 to 1949-50, respectively, under Section 148 of the new Act, and that the said notices deserve to be quashed. However, the notice, Ex. H-5, issued under that very section in respect of the assessment year 1950-51, is valid, because, unlike the other years, no notice under Section 34 of the old Act had been issued in respect of that year before the commencement of the new Act, and, therefore, no proceedings under that section were pending at such commencement.

40. Learned counsel for the Revenue then argued that this writ petition is liable to be dismissed on the ground of delay. He referred in this connection to the fact that the impugned notices were issued by the Jaipur ITO, on March 21, 1963, and that the present writ petition challenging their validity was filed on March 23, 1967. He argued that this delay of 4 years has not been explained by the petitioner at all.

41. On the other hand, the petitioner's learned counsel replied that the assessee had made an application (see Ex. C), dated January 31, 1964, for settlement of this case, and that the matter of settlement remained pending with the authorities concerned till January 31, 1967, when the petitioners were informed that the request for settlement could not be accepted.

42. It seems, prima facie, that the delay in filing this petition has been explained in the facts of this case. We would not, however, like to express any final opinion on this point. We have already held that the impugned notices, Ex. H-1 to H-4, deserve to be quashed for want of jurisdiction inthe Jaipur ITO to issue them. There is a consensus of judicial opinion [See for example, Girindranath Paul v. ITO : [1975]99ITR426(Cal) CIT v. Nanalal Tribhovandas : [1975]100ITR734(Guj) Tansukhrai Bodulal v. ITO and Marghabhai Babarbhai Patel v. R.M. Parikh, ITO : [1970]78ITR418(Guj) ] that delay in applying for a writ of prohibition will be no bar if the defect of jurisdiction is patent. It was further held in CIT v. Nanalal Tribhovandas that the validity of notice under Section 34 of the old Act (and for that matter under Section 148 of the new Act) goes to the very basis of jurisdiction of the ITO to entertain reassessment proceedings and that absence of such notice or issue of such notice without jurisdiction will deprive the ITO of power to initiate the reassessment proceedings.

43. Lastly, Mr. Parikh, learned counsel for the revenue, contended that the Jaipur ITO dropped the proceedings in respect of notices issued by the Jodhpur ITO under Section 34 of the old Act in the bona fide belief that the latter had no jurisdiction to issue such notices and that, therefore, the Jaipur ITO would still be within his jurisdiction and power if he were to restore the proceedings in respect of the notices under Section 34 of the old Act and initiate reassessment proceedings on that basis. This is a matter which does not call for adjudication in this case. We would, therefore, refrain from expressing any opinion on this point.

44. For all these reasons, this writ petition is partly allowed. Notices, Ex. H-1 to Ex.' H-4, in respect of the assessment years 1946-47 to 1949-50 are hereby quashed. The respondents are, therefore, prohibited from taking any proceedings against the petitioners on the basis of the said notices. The writ petition is, however, dismissed in respect of the notice, Ex. H-5, relating to the assessment year 1950-51. The respondents are at liberty to initiate reassessment proceedings on the basis of Ex. H-5. In the facts and circumstances, the parties are left to bear their own costs.


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