KRIPAL SINGH Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) BY this writ petition, an order dated August 12, 1985, passed by the Commissioner of Income-tax, Central Circle III, Kanpur, under Section 264 of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), as well as the consequential assessment order dated August 28, 1985, passed by the Income-tax Officer is sought to be quashed. The order which was challenged before the Commissioner of Income-tax had been passed by the Income-tax Officer in proceedings under Section 144B of the Act. It was urged by counsel for the petitioner that as a result of Section 144B of the Act having been amended, the Income-tax Officer after October 1, 1984, had to pass an order on his own and not on the basis of any direction obtained from the Inspecting Assistant Commissioner. In the instant case, since the Income-tax Officer had passed the order after receiving the directions of the Inspecting Assistant Commissioner of Income-tax under Section 144B of the Act, on January 10, 1985, the order was apparently illegal, having been passed after October 1, 1984. According to counsel for the petitioner, the Commissioner of Income-tax committed a manifest error of law in not accepting his submission.

(2.) HAVING heard counsel for the petitioner, we find it difficult to agree with his submissions. The amending Act, whereby Section 144B of the Act was amended, is apparently not retrospective. In the instant case, it appears that the draft order was passed by the Income-tax Officer on January 7, 1984, and was soon thereafter referred to the Inspecting Assistant Commissioner of Income-tax for directions as contemplated by Section 144B of the Act, as it then stood. The order containing the directions of the Inspecting Assistant Commissioner of Income-tax is dated December 31, 1984, and seems to have been received, as already noticed above, by the Income-tax Officer on January 10, 1985. It was, as such, not a case in which the draft order had been passed by the Income-tax Officer after October I, 1984. In our opinion, in view of Section 6 of the General Clauses Act, in the absence of anything to the contrary in the amending Act, the legal proceedings pending before the Inspecting Assistant Commissioner of Income-tax did not become infructuous on the commencement of the amending Act and the Inspecting Assistant Commissioner was competent to give directions dated December 31, 1984. Likewise, the Income-tax Officer was also within his jurisdiction to pass the assessment orders consequent upon receipt of the said directions.

(3.) AS regards the consequential assessment order passed on August 28, 1985, by the Income-tax Officer, Central Circle-Ill, Kanpur, it has been urged by counsel for the petitioner that the said order is in contravention of the directions contained in the order of the Commissioner of Income-tax dated August 12, 1985, which has been found by us not to be suffering from any error which may justify interference in this writ petition. The consequential order of the Income-tax Officer also would, as such, be unassailable in so far as it is consistent with the said order of the Commissioner of Income-tax. We have not found it fit to go into the question whether the assessment order passed by the Income-tax Officer on August 28, 1985, is really inconsistent with or in contravention of the order of the Commissioner of Income-tax, inasmuch as, if that is the case of the petitioner, he has the statutory remedy to challenge the said order by way of appeal, etc., under the Act and interference with the order of assessment under Article 226 of the Constitution of India would not be justified. If authority were needed for this proposition, reference may be made to the case of Titaghur Paper Mills Co. Ltd. v. State of Orissa [1983] 142 ITR 663 (SC).