Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
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.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
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.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
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