MANORDAS KALIDAS Vs. DESAI G R

JUDGEMENT

(1.) MANORDAS Kalidas, an assessee under the Indian Income -tax Act, 1922, has filed the present petition for the issue of a writ in the nature of certiorari or any other appropriate writ, direction or order under article 226 of the Constitution of India against the Additional Income -tax Officer, Section V (Central), Bombay, the Appellate Assistant Commissioner of Income -tax, N. Range, and the Additional Collector of Bombay, in connection with the assessment orders, penalty orders, notices of demand and other notices issued by the Additional Income -tax Officer, Section V (Central), Bombay, in respect of assessments for the assessment years 1946 -47 to 1946 -57 and for setting aside the same. He has also prayed for the issue of a writ in the nature of prohibition or any other appropriate direction, order or writ under article 226 of the Constitution prohibiting the first respondent and his successors in office from proceeding to make the regular assessment of the income, profits and gains of the petitioner for the assessment years 1952 -53 up to 1956 -57 or for any other assessment year. He has also prayed for the issue of a writ in the nature of prohibition or any other appropriate direction, order or writ under article 226 of the Constitution prohibiting the Appellate Assistant Commissioner of Income -tax, N Range, or his successors in office from hearing it in any way proceeding with the appeals of the petitioner pending before him for the assessment year 1951 -52. He has further prayed for the issue of a writ in the nature of prohibition or any other appropriate writ, direction or order under article 226 of the Constitution prohibiting the Additional Income -tax Officer, Section V (Central), Bombay, and the Additional Collector of Bombay from making any order for payment or from adopting any measure or taking any action against the petitioner as threatened in the show cause notice, dated September 14, 1956, referred to in the petition or from making any other order or orders against the petitioner for recovery from the petitioner of any amount under the said orders. He has also prayed for the issue of a writ in the nature of mandamus or any other appropriate direction, order or writ under article 226 of the Constitution of Indian directing the Additional Income -tax Officer, Section V (Central), Bombay, and the Union of India to refund to the petitioner the sum of Rs. 1,09,754. Mr. Jhaveri, the learned counsel for the petitioner, has not pressed this prayer for refund of the amount of Rs. 1,09,754, reserving his client's right to claim the amount by separate proceedings, if so advised.

(2.) THE facts giving rise to the present petition, briefly stated are as under : The petitioner was assessed to income -tax for the assessment year 1946 -47 by the Income -tax Officer, Market Ward, Bombay. That assessment was completed in the year 1951. The petitioner was assessed for the assessment year 1947 -48 by the Income -tax Officer, Excess Profit Tax Circle, the assessment being completed on 31st March, 1952. For the assessment year 1948 -49 the petitioner was assessed by the Income -tax Officer, Market Ward, Bombay, the assessment being completed on 30th March, 1953. On 16th July, 1953, the Central Board of Revenue, under the provisions contained in sub -section (2) of section 5 of the Indian Income -tax Act, 1922, assigned the case of Petitioner to the Commissioner of Income -tax (Central), Bombay. On 22nd July, 1954, the Commissioner of Income -tax (Central), Bombay, in pursuance of sub -section (5) of section 5 of the Indian Income -tax Act, 1922, assigned the case of the Petitioner to the Additional Income -tax Officer, Section V (Central), Bombay and directed him to perform the functions of an Income -tax Officer in respect of the case of the petitioner. The petitioner received a notice, dated August 20, 1953 from the Additional Income -tax Officer, Section V (Central), Bombay, informing the Petitioner that the petitioner's case had been assigned to him by the Commissioner of Income -tax (Central), Bombay, under the powers vested in the Commissioner under section 5(5) and section 5(7A) of the Income -tax Act. The reference to section 5(7A) of the Income -tax Act in this communication is made through a mistake. It is admitted that no order was passed under the provisions contained in section 5(7A) of the Income -tax Act and the matter has proceeded before me on the footing that no such order was passed. On 7th March, 1955, the Additional Income -tax Officer, Section V (Central), Bombay, issued notices on the petitioner under section 34 of the Indian Income -tax Act in respect of assessment years 1946 -47, 1947 -48 and 1948 -49. These notices have been challenged before me, it being the contention of the petitioner that the Additional Income -tax Officer, Section V (Central), Bombay, who issued those notices, had no jurisdiction to do so. For the assessment year 1949 -50 the Income -tax Officer, Market Ward, Bombay, had initiated the proceedings by issuing the requisite notice under section 22(2). On 30th December, 1953, the Additional Income -tax Officer, Section V (Central), Bombay, completed the assessment and passed the assessment order for the said year. On 7th March, 1955, he issued a notice under section 34 and on 7th February, 1956, passed a revised assessment order for the said year. For the assessment year 1950 -51 a notice under section 22(2) was issued by the Income -tax Officer, Market Ward, Bombay. The assessment for that year was completed on 14th December, 1954, by the Additional Income -tax Officer, Section V (Central), Bombay. That assessment was re -opened on 7th March, 1955, by the issue of a notice under section 34 and a revised assessment order was passed by the Additional Income -tax Officer, Section V (Central), Bombay, on 17th February, 1956. For the assessment year 1951 -52 the requisite notice under section 22(2) was issued by the Income -tax Officer, E.P.T,. Circle, Bombay. The assessment for that year was completed on 28th March, 1956, by the Additional Income -tax Officer, Section V (Central), Bombay. For the assessment years 1952 -53 and 1953 -54 the requisite notices under section 22(2) were issued by the Income -tax Officer, Market Ward, Bombay. Provisional assessments under section 23B of the Income -tax Act were made by the Additional Income -tax Officer, Section V (Central), Bombay, for those years. In respect of assessment years 1954 -55, 1955 -56 and 1956 -57 notices were issued under section 22(2) by the Additional Income -tax Officer, Section V (Central), Bombay. The petitioner contends that the order passed by the Central Board of Revenue on 16th July, 1953, and the order passed by the Commissioner of Income -tax (Central), Bombay, were not sufficient in law to cover any jurisdiction on the Additional Income -tax Officer, Section V (Central), Bombay, over any case of the petitioner and that all notices issued by him, all assessments made by him and all proceedings taken by him against the petitioner are void of no effect.

(3.) MR . Jhaveri, the learned counsel for the petitioner, contends that the order dated 16th July, 1953, which has been passed by the Central Board of Revenue, does not operate in respect of completed assessments for the assessment years 1946 -47, 1947 -48 and 1948 -49. He says that assessments in respect of those years had been completed before the order, dated 16th July, 1953, was passed and that they ceased to be cases within the meaning of section 5(2) of the Act. Section 5(2) runs as under :