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PETITIONER: COMMISSIONER OF INCOME TAX, WEST BENGAL, CALCUTTA & ANR.

       Vs.

RESPONDENT: ANIL KUMAR ROY CHOWDHURY & ANR.

DATE OF JUDGMENT: 30/03/1967

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. SHAH, J.C. RAMASWAMI, V.

CITATION:  1968 AIR  150            1967 SCR  (3) 720

ACT: Indian  Income  Tax Act, 1922 (11 of 1962) Ss. 33  (2),  and 66-Proper   person  to  file  appeal,  who   is-New   facts, jurisdiction of High Court.

HEADNOTE: On   the  success  of  the  assessee’s  appeal  against   in assessment  made by the Income Tax Officer, District 1  (2), the Department appealed to the Tribunal.  This was filed  by the  Income Tax Officer, District VI, in whose  jurisdiction the  assessee  had  shifted  his  residence.   The  assessee objected that the appeal was incompetent as it was not filed by the Income ’Tax Officer who had made the assessment.  The Tribunal  rejected  the objection.  On reference,  the  High Court  sent  for  the records looked into them  and  on  new facts, answered the question against the Revenue.  In appeal by special leave HELD.-The Income Tax Officer, District VI, bid  jurisdiction over   the  assessee  and  he  could  be  directed  by   the Commissioner to file the appeal. Under S. 33(2), the person who has a right to appeal is  the Commissioner  of Income Tax and not the Income Tax  Officer. The  Income Tax Officer, when he files the appeal under  the direction of the Commissioner performs merely a  ministerial function.   But  the Income Tax Officer selected  must  have some  concern with the assessee against whom the  appeal  is filed by the Commissioner of Income-Tax.  It may be that the Income  Tax  Officer who completed the  original  assessment Would  also be concerned with the appeal to be filed by  the Commissioner, but it does not mean that he is exclusively so concerned.   If  the  case  had  been  transferred  by   the Commissioner  or  the Board of Revenue from Abe  Income  Tax Officer  who completed the assessment to another Income  Tax Officer,  then  obviously the former officer  will  have  no concern  with  the appeal.  But if there has been  no?  such transfer  then it cannot be skid that be alone is  concerned with  the  appeal.  The Income Tax Officers  can  have  con- current jurisdiction over some matters.  One illustration of this is provided by s. 64(4). [325F-H; 327D] Commissioner  of  Income Tax.  West Bengal, Calcutta  v.  S. Sarkar & Co.  A.I.R. 1954 Cal. 613. approved.

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Sardar Baldev Singh v. Commissioner of Income Tax, Delhi  40 I.T.R. 605, followed. R.B.  L. Benarsi Dass v. C.I.T. East Punjab, 42 I.T.R.  363, disapproved. The  High Court exceeded its jurisdiction under s.66 of  the Income  Tax  Act  in  finding new facts.   If  it  felt  any difficulty in answering the question. it should have  called for a supplementary statement of the case. [325C]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 205 of 1966. 323 Appeal from the judgment and order dated May 28, 1963 of the Calcutta High Court in Income Tax Reference No. 79 of 1959. Veda  Vyasa, A. N. Kirpal, S. P. Nayyar and R. N.  Sachthey, for the appellants. A. K. Sen and B. P. Maheshwari, for the respondents. The Judgment of the Court was delivered by Sikri,  J.  This  appeal in pursuance of  a  certificate  of fitness granted by the High Court of Judicature at  Calcutta under  s. 66 (A)(2) of the Indian Income Tax Act,  1922,  is directed  against the judgment of the High Court  in  Income Tax  Reference  No. 79 of 1959.  By its judgment,  the  High Court answered the following question, referred to it by the Income Tax Appellate Tribunal, against the Revenue:               "Whether on the facts and in the circumstances               of  the case, the appeal before the  Appellate               Tribunal was filed by a proper person ?" The  relevant facts are stated in the statement of the  case and  are as follows : The respondents, hereinafter  referred to as the assessee, is a Hindu Undivided family and for  the assessment  year  1947-48  the assessment was  made  by  the Income  Tax  Officer, Dist. 1(2) on February 12,  1952.   He held that the income of Rs. 1,41,851/- derived from  forests in East Pakistan was not agricultural income exempt from tax under  the  Indian  Income  Tax  Act,  1922.   The  assessee appealed  to the Appellate Assistant Commissioner,  who,  by his order dated February 7, 1956, held that the said  amount of  Rs. 1,41,851/- represented income from  agriculture  and was  thus exempt from tax.  The Department appealed  to  the Income  Tax Appellate Tribunal and the appeal was  filed  by the  Income Tax Officer, District VI, Calcutta.  It  appears that the assessee who formerly resided at 24/25 Beadon  Row, Calcutta, shifted in 1954 to 29B, Ballygunge Circular  Road, Calcutta, consequently bringing him within the  jurisdiction of Income Tax Officer, District VI, Calcutta.  A preliminary objection  was  raised  before the  Appellate  Tribunal,  on behalf  of  the assessee, that the  appeal  was  incompetent because  it  had  been  filed by  the  Income  Tax  Officer, District  VI, Calcutta, and not by the Income  Tax  Officer, District  1(2), Calcutta.  It was contended before  the  Ap- pellate Tribunal that the Income Tax Officer, District 1(2), was  the  proper officer to file the appeal because  he  had made  the assessment.  The Appellate Tribunal  rejected  the contention.  It held:               "The  representative of the assessee  conceded               that the assessee was formerly residing at  24               and 25, Beadon Row,               Calcutta  but  in  1954  he  shifted  to  29/B               Ballygunge  Circular Road, Calcutta, which  is               within the jurisdiction of 5Sup Cl/67-8               324               the Income-tax Officer, District VI, Calcutta.

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             Therefore,  the  jurisdiction  for  assessment               vested  in the Incometax Officer, District  VI               in  view of the provision of section 64(2)  of               the  Income-tax Act.  That being the case,  we               are  of  the view that there was  no  lack  of               competence  on  the  part  of  the  Income-tax               Officer,  District  VI to prefer  the  present               appeal." It will be noticed that in the facts given in the  statement of  the  case and the reasoning of  the  Appellate  Tribunal there  is  no mention of any order of transfer  having  been passed  by  the Commissioner of Income Tax or the  Board  of Revenue transferring the files from the Income Tax  Officer, District  1(2)  to  the Income  Tax  Officer,  District  VI, Calcutta.   Neither is there any mention which  Commissioner of Income Tax directed the Income Tax Officer, District  VI, Calcutta, to file the appeal. The  learned  counsel for the appellants contends  that  the High  Court erred in taking into consideration  facts  which were not to be found in the Statement of the Case.  He  says that in the penultimate para of the judgment, the High Court observed :               "The  original  assessment  was  made  by  the               Incometax   Officer,  District   1(2).    This               officer  is  an  officer  subordinate  to  the               Commissioner  of  Income-tax,  Calcutta.   The               Income-tax Officer, District VI, Calcutta,  is               an officer subordinate to the Commissioner  of               Income-tax,   West  Bengal.   Therefore,   the               Commissioner  of Income Tax,  Calcutta,  could               not  transfer  the  case or the  file  to  the               Income-tax Officer, District VI, Calcutta.  It               is  only  the  Board of  Revenue  which  could               transfer  the  case  under  section   5(7)(a).               There  was  no such transfer by the  Board  of               Revenue.   Therefore,  for  all  intents   and               purposes,  it  was  the  Income-tax   Officer,               District  1(2) who remained in seisin  of  the               case and of the file." The  counsel  contends  that there was no  material  in  the statement  of  the  case  to  find  out  which  officer  was subordinate to which Commissioner of Income Tax and  whether there  was  any  transfer by the Board  of  Revenue  or  the Commissioner of Income Tax.  The High Court further observed :               "While   the  appeal  before   the   Appellate               Assistant   Commissioner  was   pending,   the               assessee   changed  his  residence   to   29B,               Ballygunge   Circular  Road.   There  was   no               transfer  of  the case or of the file  to  the               Income-tax  Officer, District VI, who was  the               appropriate officer in the Ballygunge Circular               Road area.  Therefore, it cannot be said  that               the Income-tax Officer, District VI ever  came               to  be in seisin of the case or the file.   So               far as the direc-               32 5               tion  of the Commissioner is concerned, it  is               not  disputed before us that a  direction  for               filing the appeal was given to the  Income-tax               Officer, District VI but no order of  transfer               under  section 5(5) read with section  5(7)(a)               could  be shown to us, although  the  original               records were brought into Court." The  learned  counsel  urges  that the  High  Court  had  no

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jurisdiction to send for records or look into them, and  the whole  judgment  of  the High Court is based  on  new  facts stated by it in the penultimate para of its judgment. In our view, the High Court exceeded its jurisdiction  under s.  66  of the Income Tax Act in finding new facts.   It  it felt  any  difficulty in answering the question,  it  should have  called for a supplementary statement of the case.   We will,  for the purpose of this appeal, ignore the  following facts  found  by  the High Court : (1)  that  there  was  no transfer  of the case by the Board of Revenue; (2) that  the Income  Tax Officer, District 1 (2) was an officer  subordi- nate  to the Commissioner of Income Tax, Calcutta; (3)  that the  Income  Tax  Officer,  District  VI,  was  an   officer subordinate to the Commissioner of West Bengal; and (4) that there was no transfer of the case or the file to the  Income Tax  Officer, District VI, who was the  appropriate  officer for the Ballygunge Circular Road area. The answer to the question depends on the interpretation  of s.  33(2) read with s. 64(2).  Section 33(2)  provides  that "the Commissioner may, if he objects to any order passed  by an  Appellate  Assistant  Commissioner under  section  3  1, direct  the  Income-tax Officer to appeal to  the  Appellate Tribunal  against  such order, and such appeal may  be  made within  sixty  days  of  the date  on  which  the  order  is communicated to the Commissioner by the Appellate  Assistant Commissioner." It is clear from a reading of this subsection that  the  person who has a right to appeal is  the  Commis- sioner  of  Income Tax and not the Income Tax  Officer.   It would  be noticed that the period of limitation starts  from the  date  on  which the order of  the  Appellate  Assistant Commissioner is communicated to the Commissioner by him.  It seems  to us that, in this context, the Income Tax  Officer, when  he  files  the  appeal  under  the  direction  of  the Commissioner  performs merely a ministerial  function.   But the  question still remains whether there is any  limitation on the power of the Commissioner to nominate the Income  Tax Officer who should file the appeal.  One thing seems clear-- from  the  expression "the Income Tax Officer" and  that  is that the Commissioner cannot direct any Income Tax  Officer. The  expression "the Income Tax Officer" occurs  in  various sections of the Act.  In our view, the expression denotes an Income Tax Officer having jurisdiction over the assessee  or the matter.  In other words, the officer selected must  have some concern with the 326 assessee   against   whom  the  appeal  is  filed   by   the Commissioner  of  Income  Tax.  This was also  held  by  the Calcutta  High  Court in Commissioner of  Income  Tax,  West Bengal,  Calcutta  v. S. Sarkar & Co.(1)  Chakravarti,  C.J. observed in that case :               "To my mind, the definite article "the" points               to  the  Income Tax Officer who  is  concerned               with  the case at the time when the appeal  is               to  be filed.  The section does not  say  that               the  Commissioner may direct  "an"  Income-tax               Officer." The  question  then arises whether the Income  Tax  Officer, District  VI, Calcutta, was concerned with the appeal  filed on the direction of the Commissioner of Income Tax.  We have already mentioned that the assessee changed his residence to 29B,  Ballygunge Circular Road, Calcutta, in 1954.   By  the time  the appeal came to be filed, the Income  Tax  Officer, District  VI, had jurisdiction over him.  This follows  from sections 64(1) and (2) which read as follows:               "64.    Place  of  assessment.-(1)  Where   an

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             assessee carries on a business, profession  or               vocation at any place, he shall be assessed by               the  Income-tax Officer of the area  in  which               that place is situate or, where the  business,               profession  or vocation is carried on in  more               places than one, by the Income-tax Officer  of               the  area in which the principal place of  his               business, profession or vocation is               (2)   In all other cases, an assessee shall be               assessed by the Income-tax Officer of the area               in which he resides." It was held by this Court in Sardar Baldev Singh v.  Commis- sioner of Income Tax, Delhi(2) that the Income Tax  Officer, Delhi, within whose jurisdiction the resided, could initiate proceedings under s. 34 to revise an assessment made by  the Income Tax Officer, Lahore, for the assessment year 1944-45. The reasoning of the High Court for rejecting the contention of the Department was this :               "Section   5(7)(a)   gives   power   to    the               Commissioner  to  transfer  a  case  from  one               officer subordinate to him to another and  the               Central  Board of Revenue can transfer a  case               from  one place to any other place  in  India.               Suppose  an assessee resides at  a  particular               place  and he has been assessed by the  Income               tax  Officer  who has jurisdiction  over  that               area, or is in the process of being  assessed.               If he changes his residence to another  place,               then  under  Section 64 (2)  the  Income,  Tax               Officer having juris-               (1) A.I.R.1954 Cal. 613.                (2) 40 1. T. R. 605.               327               diction over the new place of residence  would               acquire jurisdiction.  But does that mean that               the Income Tax Officer who was proceeding with               the original assessment loses his jurisdiction               ? If that were so, then an assessee could make               his   assessment  impossible   by   constantly               changing his residence during the  assessment.               That  obviously cannot be the legal  position.               The  legal  position is that in such  a  case,               although the officer having jurisdiction  over               his new place of residence acquires  jurisdic-               tion  under  Section  64(2),  the   Income-tax               Officer who commenced the original  assessment               does not lose his jurisdiction to complete the               case  and  the  completion of  the  case  will               include  the hearing of appeals  or  revisions               against the original order of assessment." It  may  be that the Income Tax Officer  who  completed  the original assessment would also be concerned with the  appeal to  be filed by the Commissioner, but it does not mean  that he  is  exclusively  so concerned.  If  the  case  had  been transferred by the Commissioner or the Board of Revenue from the  Income  Tax  Officer who completed  the  assessment  to another  Income  Tax  Officer,  then  obviously  the  former officer will have no concern with the appeal.  But if  there has  been no such transfer then we are unable to  appreciate why  he alone is concerned with the appeal.  The Income  Tax Officers can have concurrent jurisdiction over some matters. One illustration of this is provided by s. 64(4). The  High  Court dissented from the decision of  the  Punjab High  Court  in  R.  B. L.  Benarsi  Dass  v.  C.I.T.,  East Punjab(1).   The  Punjab High Court in that case  held  that

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there  was nothing in s. 33(2) to prohibit the  Commissioner from  directing any Income Tax Officer, other than  the  one who  in  fact passed the assessment order,  to  appeal.   We consider  that it is not correct to say that any Income  Tax Officer  can be directed to file an appeal.  It must  be  an Income Tax Officer who has concern with the appeal. The High Court rightly relied on Commissioner of Income Tax, West  Bengal, Calcutta v. S. Sarkar & Co.(2)  in  dissenting from the view expressed by the Punjab High Court in R. B. L. Benarsi  Dass v. C.I.T. East Punjab,(1) but in our view  the High  Court erred in holding that the facts of  the  present case  are governed by the earlier decision of  the  Calcutta High  Court.   In this case, on the facts found  by  of  the Appellate  Tribunal, one Income Tax Officer had  passed  the assessment  order  while  another  Income  Tax  Officer  has jurisdiction over the assessee.  In our view, the (1) 42 I.T.R. 363.                (2) A.I.R. 1954 Cal. 613. 328 latter  Income  Tax  Officer having  jurisdiction  over  the assessee  could be directed by the Commissioner to file  the appeal. In  the result we set aside the judgment of the  High  Court and answer the question in the affirmative and in favour  of the  Department, but in the circumstances of the case  there will be no order as to costs. Y.P.                                  Appeal allowed. 329