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PETITIONER: RAI BAHADUR SETH TEOMAL

       Vs.

RESPONDENT: THE COMMISSIONER OF INCOME TAX ANDTHE COMMISSIONER OF  EXCES

DATE OF JUDGMENT: 02/03/1959

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. SINHA, BHUVNESHWAR P. HIDAYATULLAH, M.

CITATION:  1959 AIR  742            1959 SCR  Supl. (2) 301

ACT:        Income  Tax-Place of Assessment-Transfer of assessee’s  case        to  a  different Commissioner  of  Income-tax-Assessment  by        Income-tax Officer-jurisdiction-Indian Income-tax Act,  1922        (XI Of 1922), ss. 5, 64.

HEADNOTE: The  appellant  was carrying on the business  of  a  railway contractor  in a place in the district of R. In April  1943, the  Income-tax Officer of R which was under the  charge  of the Commissioner of Income-tax, Bengal (Mufassil), served  a notice under S. 22(2) of the Indian Income-tax Act, 1922, on the  appellant  who  in pursuance of the  notice  filed  the return  on February 28, 1944.  The Income-tax  Officer  then served  notices on him under SS. 22(4) and 23(2) Of the  Act for  the  production of books, etc., but  before  the  final assessment  was  made, the Central Board of  Revenue  by  an order  passed  under  S. 5(2) of the  Act,  transferred  the appellant’s case along with some other assessment cases,  to the  Commissioner  of Income-tax  (Central),  Calcutta.   On February 11, 1948, the Income-tax Officer, Calcutta, to whom the  appellant’s  case was assigned,  issued  notices  again under  SS. 22(4) and 23(2) of the Act and after  making  the usual enquiries made the assessment order on March 15, 1948. The   appellant’s   appeals  to  the   Appellate   Assistant Commissioner  and  then to the  Appellate  Tribunal  raising objections  to the legality of the transfer of his  case  to Calcutta and to the jurisdiction of the Income-tax  Officer, Calcutta, were dismissed.  The Appellate Tribunal held  that as  the objection related to the place of assessment it  was not  competent  for the Tribunal to go into  that  question. The  appellant then made an application to the  Commissioner of  Income-tax for reference under S. 66(1) of the Act,  but this  was  dismissed on the ground that the  assessee  never raised  any objection before the Income-tax Officer  to  his jurisdiction  and  that,  in  any  case,  the  question   of jurisdiction  could  not  arise  out of  the  order  of  the Tribunal.  An application filed by the appellant to the High Court under S. 66(2) of the Act was dismissed and though the order of dismissal was not taken up on appeal, the appellant filed  an appeal to the Supreme Court against the  order  of

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the Appellate Tribunal.  It was contended for the  appellant that under S. 64(1) and (2) of the Act he was entitled to be assessed by the Income-tax Officer of the area within  which the place of his business was situate, that the 302 assessment by the Income-tax Officer of Calcutta was illegal assumption of jurisdiction and that, in any case, the  order of transfer by the Central Board of Revenue under S. 5(2) of the Act was not valid because, if it wanted to transfer  the assessment  proceedings  from  the file  of  one  Income-tax Officer to another it could be done only under S. 5(7A)  and not under S. 5(2). Held  :  (1) Sub-section (7A) of S. 5 which confers  on  the Central Board of Revenue the power to transfer any case from one  Income-tax Officer to another is not a provision  which in  any  way modifies or cuts down the power  given  to  the Central  Board  of  Revenue under sub-S. 2 of  S.  5  which enables it to specify as to which of the Commissioners would perform  functions in respect of different  areas,  persons, incomes  or cases or classes thereof. The  two  sub-sections are complementary and operate in two separate spheres. Pannalal  Binjraj v. Union of India, [1957] S.C.R.  233  and Bidi  Supply  Co.  v. Union of  India,  [1956]  S.C.R.  267, distinguished. In  the present case, the Central Board of Revenue  directed the  Commissioner  of  Income-tax  (Central),  Calcutta,  to exercise his functions in respect of certain cases including the  case of the appellant and that fell under S.  5(2)  and not  under S. 5(7A).  The order of transfer was,  therefore, valid. (2)The  jurisdiction of the Income-tax Officer,  Calcutta, to   make  the  assessment  on  the  appellant   cannot   be challenged,  in  view of sub-s. 5(a) of S. 64 of  the  Act, under which sub-ss. (1) and (2) of S. 64 have no application to an assessee in respect of whom anorder has been  made by the Central Board of Revenue  under S.5(2) of the Act. (3)  Objections  as  to the place of  assessment  cannot  be raised  in  appeal  either before  the  Appellate  Assistant Commissioner or before the Appellate Tribunal. Wallace  Brothers & Co. Ltd. v. Commissioner of  Income-tax, Bombay,  Sind and Baluchistan, [1945] F. C. R. 65  and  Seth Kanhaiyalal  v. Commissioner of Income-tax, [1936] 5  I.T.R. 739, relied on. Dayaldas  Kushiram v. Commissioner of Income-tax  (Central), [1939] 8 I.T.R. 139 and Dina Nath Hem Raj v. Commissioner of Income-tax, (1927) I.L.R. 49 All. 616, distinguished. Consequently, as the question as to the place of  assessment could  not arise out of the order of the Appellate  Tribunal no such question of law could be referred to the High Court.

JUDGMENT: CIVIl APPELLATE JURISDICTION: Civil Appeals Nos. 384 and 385 of 1957. Appeal  by special leave from the Order dated  November  28, 1952, of the Income-tax Appellate 303 Tribunal  (Calcutta  Bench) in I.T.A. No.  4067  and  E.P.T. Appeal No. 391 of 1951-52. N.   C.  Chatterjee, B. Sen Gupta and B. P. Maheshwari,  for the appellant. K.   N.  Rajagopala Sastri, R. H. Dhebar and D.  Gupta,  for the respondents. 1959.  March 2. The Judgment of the Court was delivered by

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KAPUR,  J.-These two appeals pursuant to special  leave  are brought  against  two  orders  of  the  Incometax  Appellate Tribunal (Calcutta Bench) dated November 28, 1952, passed in appeal No. 1. T. A. 4067 of 1951-52 in respect of income-tax assessment for the assessment year ending 31st March,  1944, and  in appeal No. E. P. T. A. 391 of 1951-52 in respect  of Excess  Profits  tax  assessment of the  appellant  for  the chargeable  accounting  period ending March 31,  1943.   The original assessee was R. B. Seth Teomal who was the  manager of a Hindu undivided family.  On Seth Teomal’s death on  May 30,  1944, Seth Ottanmal became the manager.  He is now  the appellant representing the Hindu undivided family.  He  will be  termed as the appellant in these appeals.   Seth  Teomal was  carrying  on the businesss of a railway  contractor  at Lalmonirhat  in  the  district of Rangpur which  is  now  in Pakistan.  In April 1943 a notice was served on him under s. 22(2)  of the Income-tax Act (hereinafter called  the  Act). He  filed the return on February 28, 1944.   The  Income-tax Officer,Rangpur,  served notices on him under ss. 22(4)  and 23(2)  for  production  of  books,  etc.   It  appears  that assessment  proceedings  continued  before  the   Income-tax Officer Rangpur, but no final assessment was made. According  to an affidavit which has now been filed in  this Court the Central Board of Revenue by an order passed  under sub-s. (2) of s. 5 of the Act assigned the appellant’s  case along  with some other assessment cases to the  Commissioner of  Income-tax (Central), Calcutta.  The order contains  the following  endorsements  which  give an  indication  of  the reason  for the case being assigned to the  Commissioner  of Income. tax (Central): 304 " Copy forwarded to (1)......................................................... (2)  Commissioner of Income-tax (Central), Calcutta.   These cases are reported to have E. P. T. liabilities ". Thus  the  appellant’s case which was  before  an  incometax Officer  within  the area in charge of the  Commissioner  of Income-tax, Bengal (Mofissil) was withdrawn from him and was assigned  to  the  Commissioner  of  Income-tax   (Central), Calcutta.   On  February 11, 1948,  the  Income-tax  Officer District  N-C  (I.  T. cum E.P.T.) to whom  it  appears  the appellant’s assessment case was assigned issued notice again under  ss. 22(4) and 23(2) of the Act.  That  officer  after making  the  usual enquiries made the  assessment  order  on March 15, 1948.  The order for Excess Profits Tax assessment was made on March 30,1948. Against these orders two appeals were taken to the Appellate Assistant  Commissioner  on April 30, 1948.  In  the  appeal against  income-tax  assessment  the  appellant  inter  alia raised   the  following  two  grounds  in  regard   to   the jurisdiction  of the Income-tax Officer, Calcutta: "  5.  For  that the petitioner is not aware  of  any  order passed for the transfer of the case from Rangpur to Calcutta and  it  is  submitted  that  without  such  an  order   and communication of such order the assessment is  challengeable for want of jurisdiction ". " 32.  For that the appellants challenge the jurisdiction as there  was no proper order of transfer and the business  was carried on outside Calcutta and assessments had never before been made in Calcutta".  But no such ground was taken in the appeal against Excess Profits Tax assessment.  The Appellate Assistant  Commissioner  dismissed both these  appeals.   In regard to jurisdiction he held:- " It however appears from records on band that the principal place  of business of the concern was at Rangpur and as  the

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income attracted E. P. T. liability the case was transferred to  Calcutta  under  Orders of C. B. R. Hence  there  is  no substance  in the contention of the learned  Advocate  which fails 305 The  appellant  then  took  two  appeals  to  the  Incometax Appellate   Tribunal.   In  the  appeal  against   incometax assessment he took two objections in regard to  jurisdiction : "  For that the objection taken before the learned A. A.  C. on  jurisdiction should not have been summarily disposed  of by  passing  reference to an order of transfer of  the  case from Rangpur to Calcutta without at the same time discussing when  the question of jurisdiction was seriously raised  and how  and under what circumstances and to, whom was the  case transferred and for what purpose "  2.  For  that the appellant begs  leave  to  repeat  that transfer  was  not legal or proper and was not made  by  any proper authority to legalise such transfer ". In the Excess Profits Tax appeal also this time an objection was taken as to jurisdiction : "  For  that the assessment is bad in law having  been  made without jurisdiction ". The Appellate Tribunal held against the appellant in a short paragraph: "  So  far  as  the first objection  is  concerned,  in  our opinion,  it is not within our jurisdiction to go into  this matter.   The objection relates to the place of  assessment. As held in 1945 T. T. R. 39 (Wallace Brothers, & Co. Ltd  v. Commissioner  of Income-tax, Bombay, Sind  and  Baluchistan, Federal  Court)  the  question as to  the  proper  place  of assessment is not one for adjudication by a Court or by  any Appellate  Authority.   Consequently we overrule  the  first contention of the Assessee." The Tribunal thus held that as the objection related to  the place  of  assessment the Tribunal was not competent  to  go into  that question.  Upon this the appellant applied for  a reference  to be made under s. 66(1) of the Act  and  prayed for  five  questions  to be  referred.   The  two  questions relating to jurisdiction were:- (1)" Had the Income-tax Officer (Non-Companies  Income-tax cum Excess Profits Tax’ District, Calcutta, jurisdiction  to make the assessment ? 39 306 (2)Was  the Income-tax Appellate Tribunal correct  in  the circumstances  in  holding that it has  no  jurisdiction  to determine the competence of the Income-tax Officer in making the assessment ?" In  the  " facts of the case " attached to  the  grounds  of Appeal it was stated that the accounts were produced  before the Income-tax Officer, Calcutta, under protest because  the jurisdiction of that officer was being challenged.  In reply to   this  the  Commissioner  after  referring  to   Wallace Brothers’  case (1) stated that it did not appear  from  the assessment   record  that  the  assessee  ever  raised   any objection to the jurisdiction of the Income-tax Officer  and if it had been taken the matter would have been referred  by the  Income-tax Officer to the Commissioner as  required  by law.  This- application under s. 66(1) was dismissed on  the ground that the question of jurisdiction could not arise out of the order of Tribunal and reliance was placed on  Wallace Brothers’  case (1) and Seth Kanhaiyalal v. Commissioner  of Income-tax  (2  ). The appellant applied to the  High  Court under s. 66 (2) of the Act and prayed for the following  two

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questions and some others to be referred :- (i)" Had the Income-tax Officer (N.  C. 1. T. Cum E. P. T. District Calcutta) jurisdiction to make the assessment ? (ii)Was  the Income-tax Appellate Tribunal correct  in  the circumstances  in  holding that it had  no  jurisdiction  to determine the competence of the Income-tax Officer in making the  assessment?" The High Court dismissed this application on July 23,  1954. No appeal has been filed in this Court against the order  of the  High  Court but an appeal has been  filed  against  the order passed by the Income-tax Appellate Tribunal. On  behalf of the Revenue a preliminary objection was  taken that  as no appeal had been filed against the order  of  the High  Court  that  order had become final  and  this  Court, therefore, should not entertain the appeal against the order of the Tribunal and reliance was placed on the  observations of Venkatarama (1) [1945] F.C.R. 65; 13 I.T.R. 39.                   (2) [1936] 5 I.T.R. 739. 307 Aiyar,  J.,  in Govinda Rajulu Mudaliar v.  Commissioner  of Income-tax (1).  At p. 810 it was observed: " The present appeal is against the decision of the Tribunal itself  It is no doubt true that this Court has  decided  in Dhakeswari Cotton Mills Ltd. v. Commissioner of  Income-tax, West Bengal (2) that an appeal lies under article 136 of the Constitution  of India to this court against a  decision  of the Appellate Tribunal under the Indian Income-tax Act.  But seeing  that in this case the appellant had moved  the  High Court and a decision has been pronounced adverse to him  and this has become final, obviously it would not be open to him to question the correctness of the decision of the  Tribunal on grounds which might have been taken in an appeal  against the judgment of the High Court.  All the points urged before us were taken in the reference under s. 66 (2) of the Indian Income-tax  Act.   It  would  therefore  follow  that  these grounds are not open to the appellant". But  counsel for the appellant relied on  Dhakeswari  Cotton Mills Ltd. v. Commissioner of Income-tax (2) where the scope of appeals under Art. 136 were set out by the learned  Chief Justice.   In  this case however it is not necessary  to  go into  this question because in our opinion there  is  little substance in the appeal itself. Counsel  for the appellant has urged two grounds in  support of   his  appeal:  (1)  that  his  place  of  business   was Lalmonirhat  and under s. 64 (1) and (2) of the Act  he  was entitled  to be assessed by the Income-tax Officer  of  that area  and (2) that assessment by the Income-tax  Officer  of Calcutta  was  an  illegal assumption  of  jurisdiction  and therefore  he was entitled to have the order  of  assessment quashed.   In order to decide these questions reference  has to  be  made  to the scheme. of  the  Act.   The  provisions relevant to the issue of jurisdiction are ss. 5 and 64.  The former is headed " Income-tax authorities " and the latter " Place of assessment ". Assessment is made by the  Income-tax Officer under s. 23 (3).  Against an order of assessment  or the liability to be assessed an appeal (1) [1958] 34 I.T.R. 807, 810. (2) [1955] 1 S.C.R. 941, 949. 308 lies under s. 30 to the Appellate Assistant Commissioner and a  further appeal to Income-tax Appellate Tribunal under  s. 33  of  the Act.  And then a reference can be  made  by  the Tribunal to the High Court under s. 66 (1) of the Act and if the Tribunal does not make such reference the High Court can

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under  s. 66 (2) be moved and it can then direct  that  such reference be made. The heading of s. 64 is " Place of assessment ". Sub-section (1) of s. 64 provides that the assessee shall be assessed by the  Income-tax Officer of the area in  which he carries  on his  business.  Sub-section (2) lays down that in all  other cases  an  assessee  shall be  assessed  by  the  Income-tax Officer  of the area in which he resides.  Under  these  two sub-sections   therefore  the  appellant,  because  he   was carrying  on business at Lalmonirhat, had to be assessed  by the Income-tax Officer of that area, i.e., by the Income-tax Officer  of  Rangpur.   Sub-section  (3)  of  that   section provides  that if a question as to the place  of  assessment arises,  it  is  to be determined  by  the  Commissioner  of Income-tax  or by Central Board of Revenue according as  the case  may be.  Under the first proviso to  this  sub-section before  the  question  as  to the  place  of  assessment  is determined  the  assessee  has to  have  an  opportunity  of representing  his  views and under the  second  proviso  the place  of assessment cannot be called into question  by  the assessee  if he has made a return in response to the  notice under  sub-s.  (1)  of  s. 22 and  has  stated  therein  the principal  place where he carries on his business or  if  he has not made such a return, the time specified in the notice has expired.  The third proviso to this subsection is: "  Provided  further  that if the place  of  assessment  -is called  in  question by an assessee the Income  Tax  Officer shall,  if Dot satisfied with the correctness of the  claim, refer  the matter for determination under  this  sub-section before assessment is made ". Thus under s. 64(3) the question of determination as to  the place of assessment only arises if an objection is taken  by the assessee and the Income Tax Officer has any doubts as to the matter.  But the determination 309 is  to be by the Commissioner of Income Tax or  the  Central Board  of Revenue.  The Act does not ’contemplate any  other authority. It was contended on behalf of the assessee that he  produced his accounts before the Income Tax Officer at Calcutta under protest.   There  is  no  mention of  this  protest  in  the assessment  file  and  that  is  what  was  stated  by   the Commissioner  of  Income Tax in his reply which he  gave  on March 3, 1953, before the Income-tax Appellate Tribunal  and which has been set out above.  If such an objection had been raised the question would have been referred by the  Income- tax Officer to the Commissioner as required under s.  64(3). That  stage never arose because the objection does not  seem to  have  been taken at the stage when it should  have  been taken, i.e., before the Income-tax Officer, Calcutta. But it is contended by counsel for the appellant that in the present case there is an illegal assumption of  jurisdiction as  the officer who made the assessment had no  jurisdiction at  all to make the assessment.  It was also contended  that if  the  Central  Board of Revenue wanted  to  transfer  the assessment proceedings from the Income-tax Officer, Rangpur, to  the  Income-tax  Officer  at  Calcutta,  it  could  only exercise that jurisdiction by making an order under s. 5(7A) and  not under s. 5(2) of the Act.  He relied on  Taylor  v. Taylor  (1) where it was held that if a mode of exercise  of power is laid down in the statute it has to be exercised  in that way and no other.  He also relied on Nazir Ahmad v. The King Emperor (2).  He further contended that this was not  a case  which  fell under s. 5(2) of the Act.   Section  5(7A) gives to the Central Board of Revenue the power to  transfer

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any case from one Income-tax Officer to another which can be mad6   at  any  stage  of  the  proceedings  and  does   not necessitate  the reissuing of a notice under s. 22(2) if  it had already been issued by the Income-tax Officer from  whom the  case is transferred and in the explanation- the word  ’ case’  in relation to any person whose name is specified  in the order of transfer means (1) (1875) 1 Ch.  D. 426, 431 (2) (1936) L.R. 63 I.A. 372. 310 all  proceedings under the Act which may be pending  on  the date of the transfer and includes all proceedings which  may be commenced after the date of the transfer. Section  5  although headed I Income-tax  authorities’  also gives to the Central Board of Revenue and the  Commissioners of  Income-tax  certain powers in regard to  withdrawing  of cases  from  one  area into other and  from  one  Income-tax Officer  to another.  Sub-section (2) of this section  gives power  to the Central Government to appoint as many  Commis- sioner’s  of  Income-tax as it thinks fit and they  have  to perform  their  functions  in respect  of  different  areas, persons and bases or classes thereof.  The relevant  portion of the sub-section is as follows:- S.5(2)  "  The  Central Government may  appoint  as  many Commissioners of Income-tax as it thinks fit and they  shall perform their functions in respect of such areas or of  such persons or classes of persons or of such incomes or  classes of  incomes  or  of such cases or classes of  cases  as  the Central Board of Revenue may direct................." In the present case there are more than one Commissioner  of Income-tax  in  Bengal  and the  Central  Board  of  Revenue assigned  certain cases including the case of the  appellant to the Commissioner of Income-tax (Central) at Calcutta  for the exercise of his functions as Commissioner.  Now this  is a power which the Central Board of Revenue did possess under sub-s.  (2) of s. 5. As to which Income-tax Officer  was  to deal with that case was for the Commissioner of Incometax to designate. Sub-section  7A  of  s. 5 confers on the  Central  Board  of Revenue  the power to transfer any case from one  Income-tax Officer  to the other which can be done at any state of  the proceedings.   This sub-section is not a provision which  in any way modifies or cuts down the power given to the Central Board  of Revenue under s. 5(2).  The two  sub-sections  are complementary  and  operate in two separate  spheres.   Sub- section (2) is for the purpose of specifying as to which  of the Commissioners would perform functions in respect of 311 different  areas,  persons,  incomes  or  cases  or  classes thereof. It  was  argued  that s. 7A is a special  provision  and  it necessarily  excludes the operation of sub-s. (2) but as  we have said above the two sections are not mutually exclusive. They  operate  in  two different  spheres,  their  areas  of operation  are different and therefore the power  which  the Central  Board  of  Revenue exercised in  the  present  case cannot  be said to be illegal . It was not transferring  the appellant’s  case from the Income-tax Officer,  Rangpur,  to the   Income-tax   Officer,  Calcutta.   It   directed   the Commissioner  of Incometax (Central), Calcutta, to  exercise his functions in respect of certain cases including the case of the appellant and that falls under s. 5(2) and not  under s. 5(7A). Reference  was  made to Pannalal Binjraj v. Union  of  India (1).   But that was a case in which the question raised  was

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of  constitutional validity of sub-s. 7A of s. 5 and it  was held that it was a measure of administrative convenience and was valid and neither infringed the fundamental rights under Art. 14 nor under Art. 19(1)(g).  There are no  observations in  that case which militate against the view that  sub  ss. (2) & (7A) operate in different areas nor did that  question arise  in that case.  The contention there raised  was  that sub-s.  7A  conferred arbitrary and uncontrolled  powers  of transfer  and  was  discriminatory  and  violative  of   the provisions   of   Art.  14  and  imposed   an   unreasonable restriction  on the right to carry on trade or  business  in contravention  of Art. 19 (1)(g).  Counsel referred to  Bidi Supply Co. v. Union of India (2) But that case also does not deal, with the matter now before us.  The simple question to be  decided  is whether the  Income-tax  Officer,  Calcutta, could  make  the assessment in the  appellant’s  case.   The submission that there was illegal assumption of jurisdiction by  the Income-tax Officer of Calcutta is not  well-founded. If the Central Board of Revenue had the power to direct  the Commissioner  of Incometax (Central), Calcutta, to  exercise his functions in (1) [1957] S.C.R. 233, 266. (2) [1956] S.C.R. 267. 312 respect of several cases including the appellant’s mentioned in the order dated November 29, 1946, as indeed it had under s. 5(2), then neither that order could be challenged nor the power  of  the  Income-tax Officer, Calcutta,  to  make  the assessment.  After an order by the Central Board of  Revenue under  s. 5(2) of the Act the provisions of sub-ss. (1)  and (2)  of s. 64 have no application because of sub-s. (5a)  of s. 64 which is as follows : Sub-s. 5 " The provisions of sub-section (1) and  subsection (2) shall not apply and shall be deemed never at any time to have applied to any assessee- (a)on whom an assessment or reassessment for the  purposes of  this  Act  has been, is being or is to be  made  in  the course  of  any case in respect of which a  Commissioner  of Income-tax  appointed without reference to area  under  sub- section  (2) of section 5 is exercising the functions  of  a Commissioner of Income-tax". In  view of this provision no objection can be taken on  the ground of sub-sections (1) and (2) of s. 64. Counsel for the appellant relied on a judgment of the Bombay High  Court in Dayaldas Kushiram v. Commissioner of  Income- tax (Central) (1), where it was held that s. 64 was intended to ensure that as far as practicable the assessee should  be assessed  locally, i. e., by the Income-tax Officer  of  the area  in  which the assessee carries on business  and  there must,  so far as the exigencies of the case allow,  be  some reasonable relation to the place where the assessee  carries on  business  or  resides.  In that case  the  assessee  was carrying on business in C Ward and the proper officer -under s. 64 to assess him was the Income-tax Officer of that Ward. As  a  result  of  the coming into  force  of  s.  5(2)  the Commissioner  of  Income-tax (Central) was  created  without reference to the area.  The case of the assessee on whom the notice  had  been served but had not been  assessed  in  due course assigned to the Commissioner of Income-tax  (Central) who  designated an Income-tax Officer for assessment of  the assessee.  The assessee thereupon made an application  under s. 45 of (1)[1939] 8 I.T.R. 139. 313 the  Specific  Relief Act and prayed for  direction  to  the

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Commissioner  of  Income-tax  (Central)  and  the  Incometax Officer  to whom his case had been assigned to forbear  from continuing  the proceedings on the grounds that the  Income- tax  Officer had no jurisdiction having regard to s.  64  of the  Act.  It was held that the Income-tax Officer  was  not the Income-tax Officer of the area in which the assessee was carrying on business.  It was also held that in spite of the insertion of s. 5(2) of the Act such assessment was  without jurisdiction because there was no amendment of s. 64.  As  a result of this judgment Ordinance IX of 1939 was promulgated which  subsequently was enacted as subs. 5 of s. 64.   After the Ordinance the assessee Dayaldas Kushiram was assessed by the  same  Officer  and after unsuccessful  appeals  to  the Commissioner  of  Income-tax and the Appellate  Tribunal  he made  an application under s. 66(1) on three questions:  (1) Whether  the order passed by the Commissioner  of  Incometax deciding  the place of assessment of the assessee  could  be the  subject  matter of appeal to  the  Incometax  Appellate Tribunal;  (2)  Whether  the  Tribunal  had  the  power   to entertain  an  appeal  on the question as to  the  place  of assessment  of an assessee even in the absence of the  order of  Commissioner of Income-tax and (3) whether the  question ,as to the place of assessment is a question of law  arising out  of  the order of the Appellate Tribunal.  It  was  held that  the order of the Commissioner was made under  s.  5(2) and   not   under  s.  64(3)  and  as  the   Ordinance   had retrospective effect these questions did not arise and  that the  assessment  of  the assessee was validly  made  by  the Income-tax Officer and the Ordinance removed the  invalidity of the orders made prior to the passing of the Ordinance  so far as they related to the assessee.  Beaumont, C. J.,  held that  the  Income-tax  Act did not determine  the  place  of assessment but the officer who had to assess and that  there could  be no appeal under the Act against the order  of  the Commissioner as to the place of assessment, but only against the order of assessment of the Income-tax Officer. 40 314 Counsel  for the appellant also relied ’on the  judgment  of the   Allahabad  High  Court  in  Dina  Nath  Hem   Raj   v. Commissioner  of Income-tax (1).  In that case the  assessee was carrying on business at Calcutta and he was sought to be assessed at Kanpur and an objection was taken to the Income- tax Officer, Kanpur, making the assessment.  The  Income-tax Officer  did  not proceed in accordance with  s.  64(3)  and therefore  it  was  held that assessment  made  by  him  was without  jurisdiction.  In the present case no question  has been raised as to the jurisdiction of the Income-tax Officer who  made the assessment and apart from that the  order  was made  by the Central Board of Revenue under s. 5(2)  of  the Act  and s. 64(5) becomes operative and sub-ss. (1) and  (2) of  s.  64 are inoperative.  See also  Seth  Kanhaiyalal  v. Commissioner of Incometax (2). The  question  then-arises whether the objection as  to  the place  of  assessment, i. e., by the Income-tax  Officer  of Calcutta  could  be challenged in appeal  to  the  Appellate Assistant   Commissioner  and  then  before  the   Appellate Tribunal.   In our opinion it could not be.  The  scheme  of the  Act shows that no appeal in regard to the objection  to the  place  of  assessment is contemplated  under  the  Act. Under  s.  64(3) of the Act a question as to  the  place  of assessment,   when   it  arises,  is   determined   by   the Commissioner.   Any  such order cannot be made a  ground  of appeal  to the Appellate Assistant Commissioner under s.  30 of  the  Act which provides for appeals  against  orders  of

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assessment  and  other  orders enumerated in s.  30  but  no appeals  is  there  provided against orders  made  under  s. 64(3).   Similarly appeals to the Appellate  Tribunal  which lie  under  s.  33 of the Act also do not  provide  for  any appeal  on  the  question of the place  of  assessment.   In Wallace  Brothers’  case (3) at p. 79 Spens,  C.  J.,  after referring to s. 64(3) and the proviso thereto said: " These provisions clearly indicate that the matter is  more one of administrative convenience than of (1) (1927) I.L.R. 49 All. 616.  (2) [1936] 5 I.T.R. 739. (.3) [1945] F.C.R. 65: 13 I.T.R. 39. 315 jurisdiction and in any event it is not one for adjudication by  the  Court............... This confirms us in  the  view that the scheme of the Act does not contemplate an objection as  to  the place of assessment being raised  on  an  appeal against  the assessment after the assessment has been  made. As we have already pointed out, the objection was not raised in  the  present case even before the  Appellate  Income-tax Officer but only before the Appellate Tribunal ". There  is nothing in the Bidi Supply case (1) which  in  any way  detracts  from  the efficacy of  the  decision  of  the Federal  Court  in  Wallace Brothers’  case  (2).   We  have already said that Bidi Supply case (1) deals with the  vires of s. 5(7A). In  this view of the matter the question as to the place  of assessment does not arise out of the order of the Income-tax Appellate Tribunal and therefore no question of law could be referred  nor could the High Court make such order under  s. 66(2).  In our opinion, the High Court rightly dismissed the appellant’s application for directing the case to be  stated under s.  66(2) of the Act. The appeals therefore fail and are dismissed with costs.  In the circumstances of the case there will be only one set  of costs. Appeals dismissed. (1) [1956] S.C.R. 267.  (2) [1945] F.C.R. 65; 13 I.T.R. 39. 316