GOVINDRAM SEKSARIA Vs. COMMISSIONER OF INCOME-TAX CENTRAL

JUDGEMENT

(1.) IN this case the Commissioner has raised eight questions, all of which he considers should be answered in his favour.

(2.) THE facts necessary to be stated by way of introduction are few. THE assessment year is the year 1935-36, and the assessees were assessed as the statutory agents, under Section 43 of the Indian Income-tax Act, 1922, of one Mahavirprasad Vishwanath. For the assessment year 1932-33 a notice had been given under Section 43, and the assessees had been held to toe the statutory agents. No fresh notice was given in subsequent years, but the assessees were assessed as such agents, and in respect of the relevant year 1935-36 they were assessed as statutory agents on March 25, 1936, and the tax was paid. On March 19, 1937, notice was issued on the assessees under Section 22(2) and Section 34, alleging that some income for which they were liable as such agents had escaped assessment. THE assessment order on that supplementary assessment was made on January 3, 1940, under Section 23(4), that is to say it was a best judgment assessment.

(3.) THE third question is : Whether Mr. G.H. Gondalia, who made the assessment order dated January 3, 1940, was a duly appointed Income-tax Officer entitled in law to make the said order ? Mr. Gondalia was an Assistant Income-tax Officer on the relevant dates. THE Indian Income-tax Act in Section 5 deals with the appointment of Income-tax Officers, but does not mention Assistant Income-tax Officers. THEy are, we are told, in a lower grade, drawing, naturally, a lower salary in the Income-tax Office. By an order dated September 27, 1939, the Commissioner of Income-tax (Central), that is one of the Commissioners appointed under the amended Income-tax Act without reference to area, passed an order in the following terms : Mr. G.H. Gondalia, Assistant Income-tax Officer, Bombay City, is hereby appointed, with effect from September 27, 1939, forenoon to perform the functions of an Income-tax Officer and is posted to hold charge of Section I (Central) vice Mr. H.B. Parekh granted leave. He will take over charge from Mr. S.B. Athalye. THE notification relating to the appointment appeared in the Gazette of India of September 30, 1939. After a notification that Mr. Parekh, Income-tax Officer, Section I (Central), had been granted leave from September 25, 1939, the next notification was in these terms : Mr. G.H. Gondalia, Assistant Income-tax Officer, Bombay City, has been appointed to Section I (Central) vice Mr. H.B. Parekh, with effect from September 27, 1939.6. It is said that the effect of the order of the Commissioner, Central, and the notification in the Gazette, is to appoint Mr. Gondalia an Income-tax Officer to hold charge in the place of Mr. Parekh. But it is noticeable that neither in the order nor in the notification is Mr. Gondalia appointed an Income-tax Officer; he is appointed to do the work of an Income-tax Officer; but he is described as an Assistant Income-tax Officer, and I have no doubt that the order was framed in that way, because the authorities wanted to avoid paying Mr. Gondalia salary as an Income-tax Officer. In fact we are told that he continued to draw the pay of an Assistant Income-tax Officer. It is noticeable that he signed the assessment order of January 3, 1940, and the order under Section 27, to which I will refer presently, of February 2, 1940, as Assistant Income-tax Officer. Merely appointing a man to perform the duties of an office does not amount to a substantive appointment to that office. I apprehend that appointing a District Judge to officiate as a High Court Judge, and to hold office in the place of a High Court Judge proceeding on leave, would not by itself constitute the District Judge a High Court Judge, particularly if he continues to draw only the salary of a District Judge. He must be appointed a High Court Judge. Although I have no doubt that an Income-tax Officer can be appointed to act in a temporary vacancy, in my opinion, it is not permissible to appoint somebody, who is not an Income-tax Officer so to act. If the contention of the Commissioner is right, he would be justified in appointing a junior clerk in his office or even the office peon at Rs. 25 per mensem to perform the functions of an Income-tax Officer. Income-tax Officers have to perform very responsible duties, and I think that an assessee is entitled to say that he can only be assessed by somebody who is on the relevant date in the grade of Income-tax Officer, and that he cannot be assessed by somebody who is not in that grade, but is merely appointed to perform the functions of an Officer in that grade. THErefore, in my opinion, Mr. Gondalia was not properly appointed.