GOPIRAM AGARWALLA Vs. FIRST ADDITIONAL INCOME TAX OFFICER

JUDGEMENT

(1.) This appeal is against the order of Sinha, J., discharging a rule that had been issued on the respondents to show cause why certain writs should not be issued under the provisions of Article 226 of the Constitution of India, the purpose being to enable the appellant to resist the proceedings that had been started against him under the provisions of Section 34 of the Indian Income-tax Act, on the ground that there had been no proper service of notice under that section. It appears that in connection with assessment of Income-tax for the assessment year 1948-49 the Income-tax authorities intended to proceed against the appellant under the provisions of Section 34(1)(a) of the Income-tax Act. That section requires that as the first step for further action the Income-tax Officer has to serve a notice containing certain requirements as indicated therein. It is also clear that ordinarily such a notice has to be issued within eight years after the expiry of the assessment year in question. The position till recently was that the notice had also to be served before eight years had expired. Whether such service of the notice within eight years after the expiry of the assessment year is still necessary or not after the recent amendment of the Income-tax Act need not be considered in the present appeal. Clearly, however, before service of the notice has been effected, the Income-tax Officer has no jurisdiction to take the further steps necessary for assessment of the income. In the present case a notice was actually issued before the expiry of eight years. A return of service was submitted to the Income-tax Officer and on the basis of this return the Income-tax Officer proceeded to issue a notice on the appellant under the provisions of Section 22(4) of the Income-tax Act calling upon the appellant to produce books and accounts as mentioned therein. The appellant's case being that there has been no proper service of the initial notice under Section 34 of the Act, he sought the aid of this Court under the provisions of Article 226 of the Constitution to prevent the Income-tax Officer from proceeding further in the matter on the assumption that there had been proper service of the notice. As I have already indicated, a rule was issued on the respondents to show cause why the writs as prayed for should not be issued. The only point raised at the hearing of the rule was whether there had been service in accordance with law of the notice under Section 34. Sinha, J., came to the conclusion that, in the facts and circumstances of the case, the service should be taken as having been effected in accordance with law. Accordingly, he dismissed the application and discharged the rule which had been issued.

(2.) The real question for decision in appeal is whether the learned Judge was right in his conclusion that there had been a valid service in accordance with law. If that conclusion is right, the appellant must fail. If, however, that conclusion is found to be wrong, the appellant will be entitled to appropriate directions so that the Income-tax Officer may not proceed on the basis of the invalid service.

(3.) Before, however, we can consider the merits of the question whether there has been service or not, it is necessary to decide a preliminary objection that has been raised on behalf of the respondents that no appeal lies against the order made by the Court below. Relying on the authority of the decision of this Court in The Justices of the Peace for Calcutta v. Oriental Gas Co. Ltd., 8 Beng LR 433, Mr. Meyer argued that in the present case the decision of Sinha, J., holding that the service has been effected, does not determine the proceedings, but only allows the proceedings to be continued before the Income-tax Officer. He contends that unless the result of the lower Court's decision is that the proceedings themselves are terminated, the decision is not a judgment within the meaning of Clause 15 of the Letters Patent.