DAYALDAS KASHIRAM Vs. COMMISSIONER OF INCOME-TAX CENTRAL

JUDGEMENT

(1.) IN this case the Appellate Tribunal, Bombay, has submitted four questions to this Court under Section 66(2) of the INdian INcome-tax Act, 1922. The questions arise in these circumstances.

(2.) THE assessment upon the assessee for the year 1937-38 was made on October 8, 1937, by the Income-tax Officer, C Ward, Section II, which was one of the divisions of Bombay City for the purposes of the Indian Income-tax Act made by the Commissioner of Income-tax, Bombay, Sind and Baluchistan, under Section 5 of the Act before the amendment of 1929, On October 21, 1938, the Commissioner of Income-tax, Bombay, Sind and Baluchistan created a Special Provincial Circle, for which he appointed certain Income-tax Officers to exercise jurisdiction throughout the limits of his own jurisdiction, that is Bombay, Sind and Baluchistan, in respect of certain cases transferred to them, and on October 31 he transferred to that Special Provincial Circle the assessee's case. THE Special Provincial Circle Officer on December 20, 1938, served a notice under Section 34 of the Act alleging that part of the assessee's income for the year 1937-38 had escaped assessment. THEreafter that Officer had before him the assessment of the assessee for 1938-39, and the re-assessment for 1937-38. On March 9, 1938, the Commissioner of Income-tax, Bombay, Sind and Baluchistan, seems to have felt some doubt about the validity of his order transferring the assessee's case to the Special Provincial Circle, and he, therefore, purported to make an order under Section 64(3) of the Act that the assessments in the cases of assessees shown in the accompanying statement for the year shown against each of them should be made by the Income-tax Officer, C Ward, Section II; and the accompanying statement contained the name of the assessee, and against it the year 1938-39. So the assessment for 1938-39 was retransferred to the Income-tax Officer, C Ward, but nothing was said about the re-assessment of 1937-38 under the notice under s,34. I should have supposed that that decision was due to the view of the Commissioner that the notice under Section 34 was invalid and a nullity, so that there was nothing to transfer in respect to that, but that view is rather negatived by the subsequent order made by the Commissioner on April 1, 1939, under the Act as then amended, whereby under Section 5(5) of the amended Act the Income-tax Officer, C Ward, Section II, was appointed to hold charge of the duties of the Income-tax Officers of the Special Provincial Circle, for Income-tax, Bombay, in addition to his own for the purposes of assessments in the cases of assessees shown in the accompanying statement for the years mentioned against them, which statement contained the name of the assessee, and against it the year 1937-38 under Section 34.So that the re-assessment purported to be covered by that order. Subsequently, the Commissioner of Income-tax, Central, who had been appointed by the Central Board of Revenue under the amended Act, made various orders, including one of July 12, 1939, which are discussed in my judgment in Dayaldas Kushiram v. Commissioner of Income-tax, Central, (1939) 42 Bom. L.R. 414 which dealt with the present assessee's case, and it is sufficient to say that the Commissioner, Central, purported to assign the assessee's case to one Mr. Shah, who was one of the Income-tax Officers appointed by the Central Commissioner without reference to area. In December, 1939, this Court gave the decision to which I have just referred, the effect of which was that it was not competent to the income-tax authorities to transfer the case of the assessee to an Income-tax Officer, appointed without reference to area, since he was entitled to be assessed by the local officer under Section 64(1) which had not been amended. As a consequence of that decision, the Governor General promulgated an Ordinance on December 28, 1939, to which I will refer in detail when I come to answer question (4).

(3.) THE third question is based on the assumption that either of the first two questions is answered in the negative, and as we have not answered the first two questions either in the affirmative or in the negative, the third question does not arise.