Ordinary Original Civil Jurisdiction Misc. No. 103 of 1939. Case: Dayaldas Kushiram Vs Commissioner of Income Tax, (Central) and Another. High Court of Bombay (India)
| Case Number | Ordinary Original Civil Jurisdiction Misc. No. 103 of 1939 |
| Judges | Beaumont, C.J. |
| Issue | Income Tax Act, 1939 - Section 64 |
| Citation | AIR 1940 Bom 234, 1940 (8) ITR 139 (Bom) |
| Judgement Date | December 15, 1939 |
| Court | High Court of Bombay (India) |
Judgment:
Beaumont, C.J.
This is an application under Section 45 of the Specific Relief Act, 1877, asking the Court (a) to direct the Commissioner of Income Tax, Central, to forbear from exercising jurisdiction and passing orders in the assessment of the petitioner for the years 1937-38 and 1938-39 and (b) to direct the Income Tax Officer, Central - Section II, to forbear from exercising jurisdiction, passing orders and continuing assessment proceedings for the assessment of the petitioner for the years 1937-38, and 1938-39 and 1939-40.
The relevant facts, which give rise to the application, can be stated shortly. In respect of the year 1937-38 the applicant who carries on business in Bombay, received a notice under section 22 of the Income Tax Act directing him to make a return to the Income Tax Officer appointed by the Commissioner of Income Tax for Bombay Presidency, Sind and Baluchistan, that is to say, the Local Commissioner of Income Tax, and in respect of that year an assessment was made. In the year 1938-39 the assessee received a notice to make a return, but no assessment has actually been made, nor has assessment been made, for the year 1939-40 to which the amended Income Tax Act applies. In respect of the year 1937-38 the assessee has been served with a notice under section 34 alleging that the certain income had escaped assessment. It is not, I think, necessary to deal with the vicissitudes affecting the proceeding before the 1st of April 1939, when the amended Income Tax Act came into operation. Under that Act, the relevant provisions of which I will refer to in a moment, a Commissioner of Income Tax, Central, was appointed, and the case of the assessee in respect of the three years in question was assigned to him by the Central Board of Revenue. That Commissioner, Mr. Bird, subsequently passed orders which are exhibited to his affidavit, the relevant exhibits being Exs. 8 to 12 inclusive. By the order of the 14th April 1939, Ex. 8, Mr. Bird ordered that six sections, styled Sections I to VI (Central), be created with headquarters at Bombay with effect from April 1st, 1939, and those Sections were to deal with the cases assigned to Mr. Bird under sub-section (2) of Section 5 of the Income Tax Act. Then by Ex. 9 Mr. Bird directed that the powers conferred on an Income Tax Officer under the said Act should with effect from April 1st, 1939, in respect of cases allotted to Section II (Central), be exercised by Mr. V. T. Shah, Income Tax Officer. Then by Ex. 11 Mr. Bird assigned to the Officer - Section II, (Central), various cases, including the case of the present assessee. Then by Ex. 12, which is dated the 9th of June 1939, Mr. Bird passed an order under sub-section (5) of Section 5 of the amended Income Tax Act directing that each of the Officers appointed to Sections I to VI (Central), should perform their functions only in respect of the area consisting of the Bombay Presidency, Sind and Baluchistan.
Now, the question is whether under those various orders the Officer of Section II (Central) is entitled to assess the applicant for the years 1937-38, 1938-39 and 1939-40. In respect of all years it is contended that the Income Tax Officer - Section 2 (Central), has no jurisdiction, having regard to the provisions of Section 64, sub-section (1), of the Income Tax Act. If that point is decided in favour of the assessee, further question, which arises in respect of the two earlier years, has no great relevance; that question being whether, in any case earlier assessment which started before the amending Act of 1939 came into operation can be transferred to the Commissioner (Central). In order to determine the questions which arise, one has to look at Section 5, read with Section 64, of the Income Tax Act.
Now, under Section 5 as it existed prior to the 1st of April 1939, when the amending Act came into operation, it was provided that there should be the following classes of Income Tax authorities for the purposes of the Act, namely, (a) the Central Board of Revenue, (b) Commissioners of Income Tax, (c) Assistant Commissioners of Income Tax and (d) Income Tax Officers. Under sub-section (3) of Section 5 it was provided that the Central Government might appoint a Commissioner of Income Tax for any area specified in the order of appointment, and for...
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