O.C.J. Miscellaneous No. 86 of 1942. Case: Dinshaw Darabshaw Shroff Vs The Commissioner of Income Tax, Central. High Court of Bombay (India)

Case NumberO.C.J. Miscellaneous No. 86 of 1942
JudgesJohn Beaumont, Kt., C.J. and Kania, J.
IssueGovernment of India Act, 1935 (St. 26 Geo. V, c. 2) - Section 226; Indian Income Tax Act (XI of 1922) - Sections 54, 37
Citation1943 (45) BomLR 31
Judgement DateSeptember 16, 1942
CourtHigh Court of Bombay (India)

Judgment:

John Beaumont, Kt., C.J

  1. This is a petition presented to the Court by an assessee making respondents the Commissioner of Income Tax, Central, the Income Tax Officer - Section III, and the Inspecting Assistant Commissioner, Central, and the relief asked for is that this Court may be pleased to issue a writ of certiorari against the respondents calling upon them to send up the records of the assessment of the petitioner for the year 1937-38 for the purpose of inquiring into the legality of the assessment order passed by respondent No. 2 on February 16, 1942, and the proceedings in respect of which such order was passed and to quash the same. Further relief asked for is that the Commissioner of Income Tax, Central, the Inspecting Assistant Commissioner, and the Income Tax Officer - Section HI, Central, be ordered to forbear from (i) taking or continuing any proceedings for the purpose of levying any penalty under the provisions of Section 28 or otherwise; (ii) taking or continuing any proceedings or exercising any jurisdiction or passing any orders in respect of or arising out of the said assessment order or assessment proceedings under the Indian Income tax Act; and (iii) exercising any jurisdiction or passing any orders in respect of the premises. The further relief seems to be consequential upon or ancillary to the primary relief asked for, namely, the issue of a writ of certiorari.

  2. The grounds on which the petitioner bases his claim are two. First, that the assessment made against him for the year 1937-38 was made by an Income Tax Officer who had no jurisdiction to assess him, since the petitioner's assessment for that year had never been legally transferred to the officer who made the assessment, that is Mr. Shah; and, secondly, that the proceedings before the Income Tax Officer were so grossly irregular as to offend against the principles of natural justice. On those two grounds it is said that we ought to send for the record, and quash the assessment.

  3. The Crown have taken a preliminary objection that the Court has no jurisdiction to issue a writ of certiorari in a case of this nature by reason of Section 226 of the Government of India Act, 1935, and Section 54 or Section 67 of the Indian Income Tax Act, 1922. For the purpose of considering the preliminary objection, we must assume that the petitioner's contentions are justified, and particularly that his case had not been legally assigned to the Income Tax Officer who made the assessment.

  4. Section 226 of the Government of India Act, 1935, enacts:

    Until otherwise provided by Act of the appropriate Legislature, no High Court shall have any original jurisdiction in any matter concerning the revenue, or concerning any act, ordered to be done in the collection thereof according to the usage and practice of the country or the law for the time being in force.

    It is well-known that that provision has appeared in many previous Acts, and has its origin historically in the disputes between Warren Hastings as Governor General of Bengal and Sir Elijah Impey as Chief Justice. However, we are not concerned with the reason for the enactment, and we have to carry...

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