DAYALDAS KUSHIRAM Vs. COMMISSIONER OF INCOME-TAX CENTRAL

JUDGEMENT

(1.) THIS is an application under Section 45 of the Specific Relief Act, 1877, asking the Court (a) to direct the Commissioner of Income-tax, Central, to forbear from exercising jurisdiction and passing orders in the assessment of the petitioner for the years 1937-38 and 1938-39, and (b) to direct the Income-tax Officer, Central, Section II, to forbear from exercising jurisdiction, passing orders and continuing assessment proceedings for the assessment of the petitioner for the years 1937-38, 1938-39 and 1939-40.

(2.) THE relevant facts, which give rise to the application, can be stated shortly. In respect of the year 1937-38 the applicant, who carries on business in Bombay, received a notice under Section 22 of the Indian Income-tax Act directing him to make a return to the Income-tax Officer appointed by the Commissioner of Income-tax for Bombay Presidency, Sind and Baluchistan, that is to say the Local Commissioner of Income-tax, and in respect of that year an assessment was made. In the year 1938-39 the assessee received a notice to make a return, but no assessment has actually been made, nor has assessment been made for the year 1939-40 to which the amended Income-tax Act applies. In respect of the year 1937-38 the assessee has been served with a notice under Section 34 alleging that certain income had escaped assessment. It is not, I think, necessary to deal with the vicissitudes affecting the proceedings before April 1, 1939, when the amended Income-tax Act came into operation. Under that Act, the relevant provisions of which I will refer to in a moment, the Commissioner of Income-tax, Central, was appointed, and the case of the assessee in respect of the three years in question was assigned to him by: the Central Board of Revenue. That Commissioner, Mr. Bird, subsequently passed orders which are exhibited to his affidavit, the relevant exhibits being exhibits 8 to 12 inclusive. By the order of April 14, 1939, exhibit 8, Mr. Bird ordered that six Section s, styled Section s I to VI (Central), be created with headquarters at Bombay with effect from April 1, 1939, and those Section s were to deal with the cases assigned to Mr. Bird under Sub-section (2) of Section 5 of the Indian Income-tax Act. THEn by exhibit 9 Mr. Bird directed that the powers conferred on an Income-tax Officer under the said Act should, with effect from April 1, 1939, in respect of cases allotted to Section II (Central), be exercised by Mr. v. T. Shah, Income-tax Officer. THEn by exhibit 11 Mr. Bird assigned to the Officer, Section II (Central), various cases, including the case of the present assessee. THEn by exhibit 12, which is dated June 9, 1939, Mr. Bird passed an order under Sub-section (5) of Section 5 of the amended Income-tax Act directing that each of the Officers appointed to Section s I to VI (Central) should perform their functions only in respect of the area consisting of the Bombay Presidency, Sind and Baluchistan.

(3.) NOW it is not disputed that under the provisions of the Act prior to April 1, 1939, the Commissioner for Bombay had divided Bombay City for Income-tax purposes into various wards, and the present applicant was carrying on business in C Ward, Section II, for which an Income-tax Officer had been appointed, and therefore, under Section 64 it would be the Officer of C Ward, Section II, who would be required to assess him under the Act before amendment.