VISHWANATH GOPAL OIL MILL Vs. S C PRASHAR

JUDGEMENT

(1.) THE first respondent served a notice upon the petitioners under Section 34 of the Indian Income Tax Act dated 5-1-1956. The notice was served on 13-1-1956. By this notice the petitioners were asked to submit their return by 17-2-1956. The petitioners asked for extention of time and the final application for extension was made by them on 15-3-1956 and the time was extended upto 29-3-1956. On 27-3-1956 the petitioners wrote to the first respondent challenging his jurisdiction to issue a notice or to assess them and this letter reached the first respondent on 31-3-1956. The first respondent refused to entertain the application of the petitioners with regard to his jurisdiction on the ground that the jurisdiction was challenged beyond time, and on that the petitioners have come before us on this petition.

(2.) SECTION 64 (1) of the Income Tax Act lays down which Income-tax Officer has to assess a particular assessee, and Sub-section (3) of Section 64 provides: ''where any question arises under this section as to the place of assessment, such question shall be determined by the Commissioner, or, where the question is between places in more States than one, by the Commissioners concerned or, if they are not in agreement, by the Central Board of Revenue Provided that, before any such question is determined, the assessee shall have had an opportunity of representing his views". There is a second proviso to this Sub-section (3) and that is to the effect; "provided that if he has not made such a return the place of assessment shall not be called in question after the expiry of the time allowed by the notice under Sub-section (2) of Section 22 or under Section 34 for the making of a return. " And the view taken by the Income-tax Officer was that as his jurisdiction was called in question after the expiry of the time allowed by the notice under Section 34, he was not bound to refer the matter to the Commissioner under the third proviso.

(3.) THE first contention urged by Mr. Palkhiwala is that inasmuch as time for making the return was extended he could call the jurisdiction of the Income-lax Officer in question upto the extended time and that the Income-tax Officer was in error when he took the view that limitation for this purpose ran out on 17-2-1956 when the time mentioned in the notice expired. In our opinion, it is unnecessary to consider this question because the view we take is that even if Mr. Palkhivala's contention is sound the objection to the jurisdiction has been taken beyond time. Admittedly, the letter of the petitioners challenging the jurisdiction of the Income-tax Officer reached him on 31-3-1956, two days beyond the extended time, and in order to get over this difficulty Mr. Palkhivala has contended that the relevant date for this purpose is not 31-3-1956 but 27-3-1956, i. e. , the date when the petitioners' letter to the Income-tax Officer was posted, and a rather curious argument is advanced that inasmuch as the letter was put in the course of transmission on 27-3-1956 and as the letter was beyond recall by the petitioners, the jurisdiction must be deemed to have been challenged on the 27th March 1956 and not on 31-3-1956. In our opinion, that contention is entirely untenable. It is not suggested and it cannot be suggested that the post office was constituted the agent of the Income-tax Officer. If that had been done, then undoubtedly the posting of the letter by the petitioners on 27-3 -. 1956 would have been the delivery of the letter to the agent of the first respondent. In this case the post office was the agent of the petitioners and not of the first respondent. The true position therefore is that the petitioners having delivered the letter to their agent, their agent failed to deliver the letter to the first respondent in time. We are not in the realm of contract and we do not understand the significance of the argument that the letter was put in the course of transmission. What has got to be done under the second proviso to Section 64 (3) is to call in question the jurisdiction of the Income-tax Officer, and the jurisdiction is not called in question till the objection is communicated to the Income-tax Officer, and inasmuch as that communication did not take place on 27-8-1956 the jurisdiction was not called in question.