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Ram Kumar Sitaram Vs. Certificate Officer, 24 Parganas, Alipore, and Another. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 237 of 1962
Reported in[1963]49ITR797(Cal)
AppellantRam Kumar Sitaram
RespondentCertificate Officer, 24 Parganas, Alipore, and Another.
Cases ReferredLakshmanan Chettiar v. Corporation of Madras
Excerpt:
- .....for the these five years before the income-tax officer in august, 1952, and requested him to make assessments for those assessment years. the request is referred to in not disclosed by the petitioners. it is to be remembered that the petitioners themselves invited this income-tax officer to make the assessment. it is not quite clear whether the petitioners themselves asked the income-tax officer to make one assessment for all the five years. the assessment order dated december 29, 1952, disposed of the assessment for all the five years; nevertheless, that order set out separately the assessment for the separate years. in the tribunal below, the order dated december 29, 1952, was not challenged on the ground that this order is illegal and without jurisdiction. even in the petition.....
Judgment:

BACHAWAT J. - This rule is directed against an order of the Certificate Officer dated 5th October, 1961, in Cases Nos. 2030 I. T. of 1953-54 to 2034 I. T. of 1953-54. The Certificate Officer filed several certificates against the petitioner on the requisition of the Income-tax Officer, Special Survey Circle VI, Calcutta, that certain sums of money were due to the Union of India from the petitioner on account of the income-tax and penalty for the assessment years 1948-49, 1949-50, 1950-51, 1951-52 and 1952-53. Objections have been filed by the petitioner under section 9 of the Public Demands Recovery Act, 1913, against these certificates. The Certificate Officer has dismissed these objections by his order dated 5th October, 1961. The petitioner asked us to revise this order.

Mr. Mitra appearing on behalf of the petitioner argued, firstly, that the assessment order of the Income-tax Officer dated December 29, 1952, is invalid and illegal, inasmuch as by that order the Income-tax Officer assessed the income for five years and the demand notice dated February 12, 1953, following upon this assessment order is also illegal and not in compliance with rule 20 of the Indian Income-tax Rules, 1922, inasmuch as a single demand cannot be made for tax payable for several years. Now it appears that the petitioners disclosed their income for the these five years before the Income-tax Officer in August, 1952, and requested him to make assessments for those assessment years. The request is referred to in not disclosed by the petitioners. It is to be remembered that the petitioners themselves invited this Income-tax Officer to make the assessment. It is not quite clear whether the petitioners themselves asked the Income-tax Officer to make one assessment for all the five years. The assessment order dated December 29, 1952, disposed of the assessment for all the five years; nevertheless, that order set out separately the assessment for the separate years. In the Tribunal below, the order dated December 29, 1952, was not challenged on the ground that this order is illegal and without jurisdiction. Even in the petition in this court the point that this order is illegal is not specifically taken. In these circumstances the petitioners ought not to be allowed to urge in this court for the first time that the order dated December 29, 1952, is illegal. If the assessment order dated December 29, 1952, is legal it must follow that the demand notice dated February 12, 1953, is also legal. There being one assessment of the income of all the five years, the demand following upon it must necessarily be demand for the tax payable in respect of these five years. Besides, along with the demand notice an attached form was sent to the petitioners. Copy of the attached form has not been annexed to the petition, nor has the original attached form received by the petitioners been produced before us. The materials on the record suggest that the attached form sent to the petitioners set out separately the assessment for each year as also the tax and penalty payable in respect of each year. The petitioners really have no genuine grievance on this point.

Mr. Mitra next argued that the Income-tax Officer who passed the assessment order had no jurisdiction to make the assessment. The assessment order was passed by the Income-tax Officer, Special Survey Circle VI. It was pointed out that the power of the Income-tax Officer is derived from the order of the Commissioner of Income-tax, West Bengal, dated October 9, 1950, said in paragraph 19 of the petition. Mr. Mitra argued that the petitioners are not new assessees and as such the Income-tax Officer in question had no jurisdiction to make the assessment. Now under the order of the Commissioner of Income-tax dated October 9, 1950, power was given to the Income-tax Officer, Special Survey Circle I-VII, to perform functions of an Income-tax Officer in respect of all new assessees discovered in the course of survey operations or otherwise in the territorial jurisdiction of the income-tax district noted against each.

Mr. Mitra argued that the new assessees referred to in this order meant assessees whose income became assessable for the first time after October 9, 1950. On the other hand, Mr. Pal contended that the expression 'new assessees' meant assessees who were being assessed by the income-tax department for the first time after October 9, 1950. We are inclined to think that Mr. Pals contention is sound and should be accepted. But there is a more fundamental objection to the present objection. The petitioners themselves invited the Income-tax Officer, Special Survey Circle VI, to make the assessment, whereas they now turn round and say that the officer had no jurisdiction to make the assessment. Such a conduct disentitles the petitioners from getting relief in this jurisdiction. The petitioners always submitted to the jurisdiction of this officer without any protest. In Messrs. Pannalal Binjraj v. Union of India, Bhagwati J. observed :

'It they acquiesced in the jurisdiction of the Income-tax Officer to whom their cases were transferred, they were certainly not entitled to invoke the jurisdiction of this court under article 32. It is well settled that such conduct of the petitioners would disentitles them to any relief at the hands of this court (vide Halsburys Laws of England, vol. II, 3rd ed., page 140, paragraph 265; Rex v. Tabrum : Ex. parte Dash; Lakshmanan Chettiar v. Corporation of Madras'.

In my judgment the petitioners by their conduct in this case have disentitled themselves to any relief from this court.

Mr. Mitra next argued that as it has already been decided in these proceedings that the certificates are invalid in so far as it relate to the penalties the petitioners could not be made liable to pay the penalties in these proceedings. This argument is based upon a misconception. On the requisition of the Income-tax Officer dated March 23, 1954, the Certificate Officer had previously filed several certificates. On the objection of the petitioners those certificates were pronounced by the Certificate Officer by his order dated February 11, 1957, to be invalid in so far as they related to the penalties. But on subsequent objections filed by the petitioners the entire certificates were cancelled on the ground that they were not in the prescribed form and, thereupon, fresh certificates were filed. The present certificate proceedings arise out of these fresh certificates. There is no binding adjudication that the present certificates are invalid in is so far as they relate to penalties. Nor is it shown that the present certificates are invalid on any ground. The demands of the Union of India both as to the tax and the penalties are sufficiently identified in the certificates.

No other arguments were advanced before us.

There is no merit in this rule.

The rule is discharged with costs, hearing fee being assessed at five gold mohurs.

R. N. Dutt J. - I agree.

Rule discharged.


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