M RAMASAMY ASARI Vs. SECOND INCOME TAX OFFICER

JUDGEMENT

(1.) THIS writ petition is directed against the order of assessment of the Second Income-tax Officer, Madurai, under the Indian Income-tax Act. The petitioner, who was the assessee, objected to the jurisdiction of the officer, but failed. The officer passed the order of assessment on March 19, 1962. The assessee prays for the issue of a writ of certiorari to quash that order stating that the officer had, in the circumstances of the case, no power or jurisdiction to pass the order.It is not known whether the petitioner (assessee) has filed an appeal against the order of the officer to the Appellate Assistant Commissioner, which he is entitled to do, under the provisions of the Act. It cannot of course be contended by the petitioner that he has no remedy for canvassing the correctness or the validity of the order of assessment except by approaching this court under article 226 of the Constitution. We strongly deprecate the practice of assessees filing writ petitions against orders of assessments, however illegal or devoid of jurisdiction such orders may be, when the statute provides for an effective remedy by way of an appeal to the Appellate Assistant Commissioner, a further appeal to the Income-tax Appellate Tribunal and a further remedy, if the facts should justify, by way of reference to this court under section 66 of the Indian Income-tax Act. THIS writ petition need not however be dismissed on that ground as we have reached the conclusion that the order of assessment made by the Income-tax Officer, Madurai, was fully within his competence and power.It is necessary only to state a few facts, which are not in dispute, in order to determine whether the contention of the assessee assailing the jurisdiction of the Income-tax Officer has any substance.

(2.) THE assessee is a native of Okkur in Ramanathapuram District where, it is alleged, he owns a house. He claims to have been doing money-lending business at Okkur. But this, however, has not been substantiated. Admittedly, he is a partner of two firms at Madurai carrying on business in the name and style of Nithyakalyani Abarana Maligai and C. Innasi Muthu Mudaliar & Sons. He has also a business, solely and exclusively his own, at Colombo called Nithyakalyani Stores. It also appears that he has got a residence at Madurai, having purchased a house at that place in the names of his two wives. Between the assessment years 1948-49 and 1956-57 he was assessed by the Income-tax Officer, Karaikudi, within whose territorial limits Okkur is situate. For the assessment year 1957-58 the petitioner submitted a return of his income to the Third Additional Income-tax Officer, Karaikudi. This officer found from the records that the assessee was carrying on business practically only at Madurai and was also having his place of residence at that place and that he had no business at Okkur at all. On October 7, 1958, he wrote to the assessee as follows : "On a perusal of the record, it is seen that your principal place of business is at Madurai and that your business activities are entirely confined to Madurai and Ceylon and you have no business at Okkur except a small house there. Moreover it is seen that you are residing at No. 67, South Avani Moola Street, Madurai. In these circumstances as you are within the jurisdiction of the III Additional Income-tax Officer, Madurai, I propose transferring your file to that officer. Please file your objections, if any, on or before October 16, 1958." *THE authorised representative of the assessee appears to have had some personal discussions with the Income-tax Officer and he sent a reply on October 27, 1958, observing thus :"With reference to the discussions we had with you on the 23rd instant regarding the above matter, we write to inform you that the assessee has no objections to the file being transferred to Madurai." *THEreafter, the assessee's file was transmitted from Karaikudi to Madurai and the assessment proceedings were pending before the Madurai Income-tax Officer.On May 28, 1959, the assessee wrote to the Madurai officer questioning his jurisdiction to proceed further in the matter.

(3.) THAT clearly shows that the petitioner's file was transferred only from one officer to another within Madurai.On the basis of this new material, Mr. Abdul Karim contended that the order of assessment is bad as the officer had relied upon the Commissioner's order dated September 1, 1961, as clothing him with jurisdiction. The Income-tax Officer observes in the assessment order as follows :"I would like to mention that the assessee's case has been specifically assigned under section 5 (7A) of the Income-tax Act to the 2nd Income-tax Officer, Madurai, by Commissioner of Income-tax, Madras, under his order dated September 1, 1961." *We do not understand this statement by the officer as meaning that the Karaikudi office ceased to have jurisdiction by reason of the Commissioner's order. Factually this statement is correct as the file was transferred to the assessing officer from the file of another officer, no doubt within the city itself, only by reason of the Commissioner order. Mr. Karim contended that if the order of the Commissioner is irrelevant and has no bearing on the question of jurisdiction of the Madurai officer to make an assessment, a reference to such irrelevant or extraneous circumstances would sufficiently vitiate the order to attract the jurisdiction of this court under article 226 of the Constitution. We are aware of decisions holding that an order of a tribunal or an authority, setting forth several reasons, might be vitiated if one or other of the vital reasons set out in the order is bad. But we do not think that the said principle can be applied to the facts of the present case, as the Income-tax Officer who made the assessment and whose assessment is now challenged, did not seek to support his jurisdiction by reason of the Commissioner's order. The reference to an extraneous matter vitiating the assessment. We have already indicated sufficiently clearly that on the facts and materials available to the department, jurisdiction to assess vested only with the Madurai officer and not in the Karaikudi officer.