Baharul Islam, J.
1. This is an application under Article 226 of the Constitution for writs of certiorari and mandamus and/or any other appropriate writ, and is directed against an order of assessment dated March 24, 1965, made by the Income-tax Officer, A-Ward, Jorhat (hereinafter referred to as 'I.T.Q., Jorhat') for the assessment year 1960-61 and the notice of demand of the same date issued by the same officer under Section 156 of the Income-tax Act, 1961 (hereinafter called 'the Act'), demanding payment of a sum of Rs. 18,495.98 from the petitioner.
2. The material facts of the case may be stated :
The petitioner filed a voluntary return on July 29, 1964, before the I. T. O., Jorhat, for the assessment year 1960-61. In the return she stated to be a partner of M/s. Jain Commercial Corporation at Jorhat, which had come into existence since the assessment year 1960-61. It was disclosed in the return by the petitioner that she was one of the partners of the aforesaid firm and that she had invested in it Rs. 28,500 on April 2, 1959, in the books of the said firm as her capital. The I.T.O., Jorhat, issued a notice under Section 143(2) of the Act and a questionnaire was also issued to her. In compliance of the said notice, her authorised advocate, Shri P. L. Haritwall, appeared. The petitioner submitted answers in writing to the questionnaire, by her letter dated February 27, 1965. In the letter she, inter alia, stated that she was 'in Assam since 1959' (answer No. 4); that previously she was a partner of M/s. Pin Metal Industry, Calcutta, which was closed down in 2010 (answer No. 6); that she was 'assessed at Calcutta from the assessment years 1952-53 to 1959-60' (answer No. 14).
3. The petitioner stated that she was an existing assessee of the Income-tax Officer, Special Survey Circle IV, Calcutta (hereinafter referred to as the 'I.T.O., Calcutta'), under the general index register No. 161-J/E. It was also stated that she had some business at Calcutta and that an amount of Rs. 23,000 was transferred from that business, while Rs. 5,500 came from her savings. On being asked by the I.T.O., Jorhat, to produce evidence regarding the business at Calcutta, she failed to produce any evidence. She failed even to produce any trade licence for the alleged trade at Calcutta. Her stand was that the fact that she had been assessed to income-tax at Calcutta was itself conclusive proof that she carried on business at Calcutta. The assessee failed to produce before the I.T.O., Jorhat, even any order of assessment made at Calcutta. Certain demand
notices for the assessment years 1952-53 to 1959-60, purported to have been issued by the I.T.O., Calcutta, were produced before the I.T.O., Jorhat, who has found that all the demand notices were signed on the same date, namely, September 12, 1959. He has also found that the petitioner was a purdanashin lady and wife of a Marwari gentleman of Tinsukia; and that she failed even to give the accurate address at Calcutta. On a consideration of the materials before him and the circumstances, the I.T.O., Jorhat, came to the finding : 'From the above facts it is clear that the assessee is never a permanent resident of Calcutta and she is never a regular-assessee of Calcutta'. He has further found: 'The circumstances of the whole case make me to believe that the assessee is not behaving in a straightforward way and the assessments which were alleged to have been made in Calcutta were of complete misrepresentation and non-representation of facts. On a question made as to the assessee's Calcutta address, the assessee is unable to give the exact address at Calcutta'. Ultimately, he has found : 'I am of opinion the assessee has not carried on any business at Calcutta as no evidence of the same has been produced before me.' In the result he assessed her at Rs. 45,952 showing Rs. 17,452 as her share income from the registered firm, M/s. Jain Commercial Corporation, and Rs. 38,500 as her income from other sources.
4. The assessee preferred an appeal before the Appellate Assistant Commissioner of Income-tax, Dibrugarh Range, Dibrugarh. The appeal was dismissed. She then preferred a second appeal before the Income-tax Appellate Tribunal, Calcutta Bench 'C', Calcutta (hereinafter called 'the Tribunal'). The Tribunal also affirmed the order of the I.T.O., Jorhat.
5. It was contended on behalf of the revenue before the Tribunal that while the assessee filed her voluntary returns before the I.T.O., Calcutta, on August 18, 1959, the order of assessment was made on December 28, 1960, for the assessment years 1952-53 to 1959-60; that the I.T.O. fixed August 25, 1959, for the production of the accounts and completed the assessment on the same date; that it was mentioned in the order sheet that the assessee had no bank accounts, nor any proper account books; and that the assessments were made on figures ranging from Rs. 3,878 to Rs. 5,779 for the assessment years 1952-53 to 1959-60. It was also urged that the Calcutta I.T.O. issued a notice under Section 22(2) on June 1, 1960, fixing November 3, 1960, when the case was adjourned till November 29, 1960, at the request of the assessee and a further adjournment was made as the earlier order was not complied with by the assessee, and that ultimately, the I.T.O., Calcutta, made an order of assessment on December 28, 1960, under Section 23(4). It was further urged on behalf of the revenue that the assessee had stated before the I.T.O., Jorhat, that she had closed down her Calcutta business and shifted to Jorhat in 1959 and that she had
no business in Calcutta at the relevant time. The Tribunal accepted the contentions made by the departmental representative and affirmed the order of the I.T.O., Jorhat.
6. The assessee filed an application before the Tribunal for making a reference to the High Court. The application was also rejected. The assessee did not move this court to direct the Tribunal to make a reference but instead has filed the present application under Article 226 of the Constitution for reliefs mentioned above.
7. The rule came up for hearing on January 17, 1975, before a Division Bench. That passed the following order (material portion only) :
'This application involves an important question of law. We feel, it may be heard by a larger Bench.'
That is how the rule has come up before the Special Bench for disposal.
8. The only point urged by learned counsel for the petitioner is that the income of the petitioner for the assessment year 1960-61 having been assessed by the I.T.O., Calcutta, the I.T.O., Jorhat, had no jurisdiction to assess the income of the petitioner for the same assessment year.
9. The decision on the question raised hinges on the interpretation of Section 124 of the Act.
10. Section 124 is in the following terms :
'124. (1) Income-tax Officers shall perform their functions in respect of such areas or of such persons or classes of persons or of such incomes or classes of income or of such cases or classes of cases as the Commissioner may direct.
(2) Where any directions issued under Sub-section (1) have assigned to two or more Income-tax Officers, the same area or the same persons or classes of persons or the same incomes or classes of income or the same cases or classes of cases, they shall have concurrent jurisdiction and shall perform such functions in relation to the said area or persons or classes of persons or incomes or classes of income or cases or classes of cases as the Commissioner, or the Inspecting Assistant Commissioner authorised by him in this behalf, may, by general or special order in writing, specify, for the distribution and allocation of the work to be performed.
(3) Within the limits of the area assigned to him, the Income-tax Officer shall have jurisdiction--
(a) In respect of any person carrying on a business or profession, if the place at which he carries on his business or profession is situate within the area, or where his business or profession is carried on in more places than one, if the principal place of his business or profession is situate within the area, and
(b) In respect of any other person residing within the area.
(4) Where a question arises under this Section as to whether an Income-tax Officer has jurisdiction to assess any person, the question shall be determined by the Commissioner ; or where the question is one relating to areas within the jurisdiction of different Commissioners, by the Commissioners concerned or, if they are not in agreement, by the Board.
(5) No person shall be entitled to call in question the jurisdiction of an Income-tax Officer--
(a) after the expiry of one month from the date on which he has made a return under Sub-section (1) of Section 139 or after the completion of the assessment, whichever is earlier ;
(b) where he has made no such return, after the expiry of the time allowed by the notice under Sub-section (2) of Section 139 or under Section 148 for the making of the return.
(6) Subject to the provisions of Sub-section (5) where an assessee calls in question the jurisdiction of an Income-tax Officer, then the Income-tax Officer shall, if not satisfied with the correctness of the claim, refer the matter for determination under Sub-section (4) before assessment is made.
(7) Notwithstanding anything contained in this Section or in Section 130A, every Income-tax Officer shall have all the powers conferred by or under this Act on an Income-tax Officer in respect of any income accruing or arising or received within the area for which he is appointed.'
11. In the voluntary return filed by the petitioner, her principal place of business and her residence were stated to be at Jorhat. Obviously, therefore, under Section 124 of the Act the I.T.O., Jorhat, had the necessary jurisdiction to assess the petitioner. It does not appear that any objection to jurisdiction of the I.T.O., Jorhat, was at all raised before him at any stage. Had she done so, as she now contends before us, the matter would have been referred to the Commissioner for his decision under Sub-section (4) of Section 124. Sub-section (5) of the Section in clear terms lays down that no objection as to the jurisdiction can be raised after the expiry of one month from the date on which the return is filed under Sub-section (1) of Section 139 or after completion of the assessment, whichever is earlier, under Clause (a) of Sub-section (5) of Section 124. Subject to the provisions of Sub-section (5), where an assessee calls in question the jurisdiction of an Income-tax Officer, the Income-tax Officer, if he is not satisfied with the correctness of the claim of the assessee, would refer the matter for determination under Sub-section (4) before the assessment is made.
12. In the case of Wallace Brothers & Co. v. Commissioner of Income-tax their Lordships of. the Federal Court, interpreting Section 64 of the Indian Income-tax Act, 1922, which is similar to Section 124 of the Income-tax Act of 1961, observed :
'According to Section 4A(c) the question of residence of an assessee must be determined with reference to each year and the finding of residence during 1938-39 would not warrant the assumption that when the proceedings for assessment were started early in 1940, the assessee was resident at the place in which he was found to have resided in 1938-39.'
13. It was further held :
'The provisions of Section 64(3) dearly indicate that the question as to the place of assessment is more one of administrative convenience than of jurisdiction and that in any event it is not one for adjudication by the court.
The scheme of the Act does not contemplate an objection as to the place of assessment being raised in appeal against the assessment after the assessment has been made. The fact that the Appellate Tribunal nevertheless thought fit to allow the question as to the place of assessment to be raised and even included it in the reference to the High Court under Section 66 of the Act, cannot alter the position and the question cannot be allowed to be raised before the Federal Court in appeal against the decision of the High Court on the reference under Section 66 of the Act.'
14. It has already been mentioned that no objection as to the lack of jurisdiction, territorial or otherwise, appears to have been raised before the I.T.O., Jorhat. The order of the I.T.O. does not show that any such objection was raised, either in writing or orally, by her counsel who appeared before the I.T.O. at the time of hearing.
15. In paragraph 3 of the petition before us, however, it has been alleged by the petitioner:
'In course of hearing assessment, your petitioner categorically pointed out the aforesaid mistake to the Income-tax Officer, 'A' Ward, Jorhat, and stated before him that your petitioner was assessed for the said assessment year 1960-61, by the Income-tax Officer, Special Survey Circle IV, Calcutta, under general index register No. 161/J/E. It was stated before the Income-tax Officer, Jorhat, that as the assessment for the very same year had already been completed by the Income-tax Officer, Calcutta, no order of assessment could be passed for the said year. It was also submitted by the petitioner that the return filed by the assessee being invalid in law it cannot give any special jurisdiction to the Income-tax Officer, Jorhat, in this regard.'
16. In support of the petition an affidavit was sworn by one Hulaschand Jain, son of one Sri Harakchand Jain, aged about 31 years 'residing at Gauhati, in the District of Kamrup'. He has not disclosed in his affidavit his connection with the petitioner. He has merely stated in paragraph 1
of the affidavit: 'I am looking after the case on behalf of the petitioner and, as such, I am fully acquainted with the facts and circumstances thereof.' The plain meaning of the sentence is that he is looking after the case, namely, the petition before this court on behalf of the petitioner. The petitioner alleged to have resided and carried on business in Calcutta, prior to 1959, and thereafter she has been residing at Tinsukia. In paragraph 1 of the petition also she has stated that she is residing at Tinsukia in the district of Lakhimpur. The deponent is a resident of Gauhati. He has not stated whether he was looking after the case in question on behalf of the petitioner at Calcutta and/or that he was looking after the petitioner's income-tax case in question before the I.T.O., Jorhat. On the contrary, the records show that it was not the deponent, but the petitioner's advocate, Shri Haritwall, who appeared before the I.T.O., Jorhat, on behalf of the petitioner and who was heard.
17. The deponent has stated that the averments made in paragraph 3 of the petition 'being matters of record are true to my information derived therefrom.' When certain facts are deposed to as true being matters of record, it must be supported by records, inasmuch as the records are the primary aud best evidence of the facts sought to be proved. Learned counsel for the petitioner could not bring to our notice any document to show that any objection as to jurisdiction was raised before the I.T.O, Jorhat. The plea of filing the return before him through ''mistake' appears to be an after-thought. No reliance on the averments of the petitioner that objection as to jurisdiction was raised before the I.T.O. at Jorhat can be placed. The plea is worthless.
18. An affidavit-in-opposition was filed on behalf of I.T.O., Jorhat, and respondent No. 3 (the Commissioner of Income-tax, Assam, Nagaland, Manipur, Meghalaya & Tripura, Shillong). True it is that the averment in paragraph 3 of the petition has not been expressly denied in the counter-affidavit. The deponent is one Shri Sunil Kumar Dutta, Income-tax Officer, 'A' Ward, Tinsukia. In the affidavit he has stated that he is the I.T.O. at Tinsukia and that now the petitioner falls within his jurisdiction. He was not the I.T.O. at Jorhat in 1960. Naturally, therefore, it was not possible for him to know whether the alleged objection was raised before the I.T.O., Jorhat, in 1960 unless it was disclosed by records. The only persons who were supposed to know whether or not such an objection was raised, were the then I.T.O. Jorhat, and the counsel for the assessee, Mr. Haritwall, who appeared before him on behalf of the petitioner. Mr. Haritwall has filed no affidavit that such an objection was at all raised. The burden is on the petitioner. She has failed to discharge it.
19.
In my opinion, such an objection could not possibly be raised inasmuch as the filing of the return was not coercive, but voluntary. If she filed the voluntary return through 'mistake' as she now contends, she would have applied for the withdrawal of the return, rather than raise the alleged objection ; but no such application appears to have been made.
20. It is urged by the assessee that the question is not whether the I.T.O., Jorhat had or had not territorial jurisdiction, the question is whether he had the jurisdiction to make assessment for 1960-61, for which assessment had been made by the I.T.O., Calcutta. Section 124 has not used the word 'territorial'. When a provision of law is clear and unambiguous, it is not permissible to add a word to, or omit a word from, it. In my opinion, the word 'territorial' cannot be read into Section 124 of the Act. The Section speaks only of jurisdiction of the I.T.O. Jurisdiction includes both territorial and other kinds of jurisdiction.
21. In my opinion, therefore, the objection raised by the assessee only at the appellate stage is hit by Sub-section (5) of Section 124 of the Act. The I.T.O., Jorhat, cannot be said to have lacked jurisdiction.
22. The question whether once an order of assessment for income for a particular year has been made a second I.T.O. of a different place in India has or has no jurisdiction to make an assessment of income for the same year, depends on several factors. The scheme of the Act is such that the assessee had to file the return before one I.T.O. as provided by Section 124 of the Act and that an assessment is to be made by the I.T.O. before whom the return is filed. This is for the sake of convenience both for the department and the assessee. If two orders of assessment are made for the income of the same year, may be for different sums disclosed by the assessee for the different areas, it does not necessarily follow that the subsequent order of assessment is without jurisdiction. The first I.T.O. may have possibly lacked jurisdiction and the 2nd I.T.O. may possibly have jurisdiction. In the instant case whether the I.T.O., Jorhat, had or had no jurisdiction is dependent on the question whether the I.T.O., Calcutta, had or had no jurisdiction. The submission of learned counsel for the assessee that once an order of assessment for a particular year has been made by the I.T.O., Calcutta, the I.T.O., Jorhat, has no jurisdiction to make the assessment for the same year, is based on the assumption that the I.T.O., Calcutta, had jurisdiction. In order that a second assessment may be invalid the first assesssment must be valid. In the instant case, the finding is that the assessment order alleged to have been passed by the I.T.O., Calcutta, was 'got passed'; in other words, the order of the Calcutta I.T.O. has been found to be suspicious and collusive. This is a finding of fact. If that be so, it was an invalid order.
23. Counsel for the petitioner submitted that unless an invalid order is set aside, it is a good order, and in support of his contention he has cited Commissioner of Income-tax v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) . The facts of that case have no bearing on the case in hand. As between a valid and an invalid order, the former supersedes the latter.
24. That apart, the petitioner is not entitled to get any relief in this writ application. The present application is one for writs of certiorari and mandamus. These writs are writs of discretion. The High Court exercising discretionary powers under Article 226 will refuse to issue such a writ, if the justice of a case does not demand it. A writ of certiorari can be issued if there be, inter alia, an error of law apparent on the face of the record. The petitioner has not been able to show that there was any error of law apparent on the face of the record.
25. A Full Bench of this court in the case of Sikku alias Sikku Haldar v. State of Assam AIR 1970 GAU 91 held :
'The point is that a writ being a discretionary remedy, it will not be granted if the petitioner invited or acquiesced to the jurisdiction of the authority.....But a distinction must be made between patent and latent
lack of jurisdiction. Where the lack of jurisdiction is patent, i.e., apparent on the face of the proceedings, a party aggrieved is entitled to a writ even if he acquiesced to the exercise of the jurisdiction. Where, however, the lack of jurisdiction is latent, i.e., it depends on certain factors, acquiescence will disentitle a party to a writ.'
26. Which of the two I.T.Os.--of Jorhat and of Calcutta--had jurisdiction depends on investigation into facts. The error, if any, therefore, is not an error apparent on the face of the record, but dependent on facts.
27. Ferries in his Extraordinary Legal Remedies has observed:
'Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy.'
28. The learned author has further observed :
'The office of mandamus is to execute, not adjudicate. It does not ascertain or adjust mutual claims or rights between the parties. If the right be doubtful, it must be first established in some other form of action; mandamus will not lie to establish as well as enforce a claim of uncertain merit. It follows, therefore, that mandamus will not be granted where the right is doubtful.'
In my opinion the petitioner is not entitled either to a writ of certiorari or to a writ of mandamus.
29.
In the result the application is rejected. The rule is discharged. There will be no order as to costs.
D. Pathak, J.
30. I agree with the opinion expressed and the conclusion reached by my learned brother, Islam J.
Sadanandaswamy, J.
31. The Division Bench which heard this writ petition in the first instance was of the opinion that it involves an important question of law and, therefore, requires to be heard by a larger Bench. Hence, this writ petition has been referred to this Bench.
32. In this writ petition the petitioner has prayed for the issue of a writ in the nature oi certiorari quashing the order of assessment dated March 24, 1965, passed by the Income-tax Officer, 'A' Ward, Jorhat, for the assessment year 1960-61 and the notice oi demand of the same date as well as for a writ of mandamus directing the respondents to refund the sum of Rs. 10,000 collected from the petitioner in pursuance of the said notice.
33. According to the case of the petitioner, she is a resident of Tinsukia in the District of Lakhimpur. She was a partner in a partnership firm which carried on business at Calcutta and other places in Assam. She was an assessee within the jurisdiction of the Income-tax Officer, 'B 'Ward, Special Survey Circle IV, Calcutta, for several years and was assessed for the assessment years 1952-53 to 1962-63 by the said Income-tax Officer. The order of assessment for the year 1960-61 was completed in Calcutta by the said Income-tax Officer on December 28, 1960, on an income of Rs. 6,000 She became a partner of the firm, Messrs. Jain Commercial Corporation, which was carrying on business at Jorhat and the firm was assessed by the Income-tax Officer, Jorhat, for the year 1960-61. As a partner of the said firm the petitioner submitted a return of her income inadvertently for the year 1960-61, though she had been assessed earlier by the Income-tax Officer, 'B' Ward, Special Survey Circle IV, Calcutta. It is her further case that in the course of the hearing for the purpose of assessment the petitioner specifically pointed out the aforesaid mistake to the Income-tax Officer, 'A' Ward, Jorhat, that she stated before him that she had been assessed for the assessment year 1960-61 by the abovesaid Income-tax Officer, Calcutta, under general index register No. 161-J/E and that no order of assessment could be passed for the same assessment year by the Income-tax Officer, Jorhat, since the return filed by the petitioner was invalid in law and cannot give jurisdiction to the Income-tax Officer, Jorhat, to reassess the petitioner. The petitioner, by a letter, requested the Income-tax Officer, Jorhat, for the transfer of her case from Calcutta to Jorhat on October 17, 1963, but it was refused.
34. The return for the assessment year 1960-61 was submitted by the petitioner as stated above on July 29, 1964, before the Income-tax Officer, Jorhat.
35.
The Income-tax Officer, Jorhat, was of the opinion that the assessments made at Calcutta were of doubtful validity and assessed the petitioner again by his order dated March 24, 1965, for the year 1960-61. In the said assessment he added the whole of the investment made by the petitioner, amounting to Rs. 28,500, as income from undisclosed sources and raised the demand of Rs 18,494.98 by way of tax. The petitioner filed the appeal against the order of assessment before the Appellate Assistant Commissioner of Income-tax, Dibrugarh Range, Dibrugarh, The appeal was rejected on November 26, 1968, since the appellate authority was of the view that the assessment made by the Income-tax Officer, Calcutta, for the year 1960-61 was not a bar to the order of assessment made by the Income-tax Officer, Jorhat. Thereafter, the petitioner filed an appeal before the Income-tax Appellate Tribunal, Calcutta Bench, 'C', Calcutta, against the order of the Appellate Assistant Commissioner, The appeal was rejected by the Income-tax Appellate Tribunal by its order dated November 24, 1969. It was of the view that tbe petitioner was residing at Jorhat in the relevant accounting period and as such the Income-tax Officer, Jorhat, had the jurisdiction to assess the petitioner. The petitioner filed an application before the Income-tax Appellate Tribunal requesting it to refer certain points of law arising out of its order to the High Court, That application was also rejected by the Income-tax Appellate Tribunal by its order dated May 23, 1970.
36. In the course of the examination of the accounts of the firm, M/s. Jain Commercial Corporation, wherein the petitioner was a partner since tbe assessment year 1960-61, it was found that she had invested a sum of Rs. 28,500 on April 2, 1959, as her capital. The Income-tax Officer, Jorhat, asked the petitioner to prove the nature and source of the said amount. In reply, the petitioner stated, amongst other things, that she was an existing assessee of the Income-tax Officer, Special Survey Circle IV, Calcutta, under G.I.R. No. 161-J/E, that she had some business in Calcutta and an amount of Rs. 23,000 was transferred from that business while Rs. 5,500 came from her past savings. This explanation was not accepted by the Income-tax Officer. The main contention urged before the Income-tax Appellate Tribunal by the petitioner was that since she had been assessed by the Income-tax Officer, Calcutta, for the assessment year 1960-61, by his order of assessment under Section 23(4) dated December 28, 1960, the Income-tax Officer, Jorhat, had no authority under the law to make another assessment subsequently for the same assessment year 1960-61, The petitioner also urged that she was carrying on business in Calcutta from the assessment year 1952-53 to the assessment year 1960-61, was being assessed to tax at Calcutta and that, as per accounts, in the balance-sheet as on April 16, 1959, a sum of Rs. 23,000 was shown in the name of M/s. Jain Commercial
Corporation towards the assets side. According to the petitioner, this very amount was shown in the books of the said firm in the capital account of the assessee. It was urged that the balance came out of her past savings.
37. The departmental representative urged before the Tribunal that the petitioner filed a return before the Income-tax Officer, Jorhat, on July 29, 1964, and it was on the basis of the said return that the assessment was completed some time in March/April, 1965. The assessee filed voluntary returns on August 18, 1959, for the assessment years 1952-53 to 1959-60 before the Income-tax Officer, Calcutta, who fixed August 25, 1959, for production of accounts, etc., and completed the assessment on the same day. The order sheet showed that the petitioner had no bank account nor proper account books maintained by her. The assessments were completed on the figures ranging from Rs. 3,878 to Rs. 5,779 in the assessment years 1952-53 to 1959-60. The Income-tax Officer, Calcutta, issued a notice under Section 22(2) on June 1, 1960. No return was filed by the petitioner for that assessment year. The accounts were called for on October 7, 1960, fixing Novembers, 1960, as the next date of hearing. The case was further adjourned at the request of the petitioner. Ultimately, there was no compliance by the petitioner. The assessment was made on December 28, 1960, under Section 23(4) by the Income-tax Officer, Calcutta. It was also urged by him before the Tribunal that the petitioner had closed down the business and had shifted to Jorhat and since there was no business at Calcutta the Income-tax Officer, Jorhat, was the competent officer to deal with the case of the petitioner on merits. The explanation offered by the petitioner was rightly rejected on merits by the Income-tax Officer, Jorhat.
38. After a consideration of the abovesaid contentions urged by the parties, the Appellate Tribunal noticed that the assessments for the years 1952-53 to 1959-60 were completed by the Income-tax Officer, Calcutta, on a date subsequent to the date of deposit appearing in the books of M/s. Jain Commercial Corporation wherein the petitioner became a partner and that the petitioner stated in her reply before the Income-tax Officer, Jorhat, that she came back to Jorhat during the relevant accounting period. It, therefore, held that the Income-tax Officer, Jorhat, had the jurisdiction to assess the petitioner and that the petitioner herself having filed the return on July 29, 1964, she could not urge that the assessment is without jurisdiction. The Tribunal felt that it was not necessary to go into the question whether the assessments made by the Income-tax Officer, Calcutta, were without jurisdiction or not. It agreed with the finding of the Income-tax Officer, Jorhat, in not accepting the explanation offered by the petitioner on merits and held that the petitioner had failed to prove the nature and' the source of the investment made by her. The appeal was 'accordingly dismissed.
39. On the submissions made by the learned counsel before us, two points arise for determination. They are :
'(1) Whether the order of assessment made by the Income-tax Officer, Jorhat, for the assessment year 1960-61 is invalid on the ground that he was incompetent to make the said order, in view of the fact that an earlier order of assessment for the same assessment year had been made by the Income-tax Officer, Calcutta ?
(2) Whether, if the above point is answered in favour of the petitioner, this is a fit case for granting relief to the petitioner under Article 226 ?'
40. On the first point, it is urged by Mr. Talukdar, appearing for the respondents, that the assessee voluntarily filed the return before the Income-tax Officer, Jorhat, and did not question his jurisdiction within the time prescribed under Section 64 and that, therefore, she is barred from raising the qutstion of jurisdiction. It is his further contention that what is assessed by the Income-tax Officer, Jorhat, is the income derived by the assessee within his jurisdiction, whereas, according to him, what had been assessed earlier by the Income-tax Officer, Calcutta, was the income which accrued to the assessee within the jurisdiction of the Income-tax Officer, Calcutta, and though both the assessments related to the same assessment year 1960-61, there is nothing in the Income-tax Act which prevents a subsequent assessment by a different Income-tax Officer in respect of a different income.
41. In support of his contention with regard to the provisions of Section 64 of the Income-tax Act, Mr. Talukdar has relied on a number of decisions, In Sardar Baldev Singh v. Commissioner of Income-tax : [1960]40ITR605(SC) , the appellant, who was then a resident of Lahore, was assessed to income-tax for the assessment year 1944-45 by the Income-tax Officer, Lahore. After the partition of India he shifted to Delhi and resided there at all material times in 1947. The Income-tax Officer at Calcutta passed an order under Section 23A of the Income-tax Act that the undistributed portion of the income of a company, in which the appellant was a shareholder, should be deemed to be distributed and as a result of this order an additional sum had to be included in the income of the appellant for the assessment year 1944-45. The Income-tax Officer, Delhi, upon information, issued a notice to the appellant under Section 34 of the Income-tax Act to include the above sum as income which had escaped assessment and made p. fresh assessment order against the appellant. The appellant contended that the Income-tax Officer at Lahore, and not the officer at Delhi, had jurisdiction to make the assessment under Section 34. It was held by the Supreme Court that the place where an assessment or reassessment could be made under Section 34 had to be decided under Section 64. As the appellant did not carry on any business but was residing at Delhi he could
be properly assessed by the Income-tax Officer, Delhi, under Section 64(2) if the assessments were the original assessments and, therefore, no objection could be taken to his assessment under Section 34 by the Income-tax Officer at Delhi. The decision in C.V. Govindarajulu Iyer v. Commissioner of Income-tax : [1948]16ITR391(Mad) , wherein it was held that the proceedings under Section 34 and the original assessment proceedings were not separate, was distinguished by the Supreme Court on the ground that though the two assessments are not separate for certain purposes the latter need not take place only where the first had been made. But this was a case where the second assessment was made under Section 34. In the present case the assessment made by the Income-tax Officer, Jorhat, is not under Section 34. Hence, this decision is of no help to the respondents. In M. Ramasamy Asari v. Second Income-tax Officer : [1964]51ITR57(Mad) , it has been held by the High Court of Madras that it is only the Income-tax Officer having territorial jurisdiction, either over the place where the assessee is carrying on business or over the place where he is residing, if there is no business, who would have jurisdiction under Section 64. It is, therefore, urged that since, according to her own return, the petitioner derived the income from the Jain Commercial Corporation during the assessment year 1960-61, the Income-tax Officer, Jorhat, had jurisdiction to assess that income. In Wallace Brothers & Co. Ltd. v. Commissioner of income-tax [1945] 13 ITR 39 , it has been held that the scheme of the Income-tax Act does not contemplate an objection as to the place of assessment being raised in appeal against the assessment after the assessment has been made and that such an objection could be raised only as provided under Section 64. Since in the present case the petitioner did not raise an objection as to the jurisdiction of the Income-tax Officer, Jorhat, within the time prescribed under Section 64, it is urged, she is precluded from urging the bar of jurisdiction after the assessment is made. In Sarupchand and Hukumchand v. Union of India : [1953]23ITR382(MP) , it was held by the Full Bench that where the assessee's principal place of business is Indore and the family resides in Indore, the jurisdiction of the Income-tax Officer, Indore, to assess the assessee is not excluded by the fact that the Income-tax Officer, Bombay, has commenced assessment proceedings in respect of the income accruing and received by the assessee within his area. It was also held that an' objection as to the place of assessment must be specific and that Section 64(3) becomes operative only when a question as to the place of assessment arises. The decision in Wallace Brothers & Co. Ltd, v. Commissioner of Income-tax [1945] 13 ITR 39 was followed. The statement by the assessee to the effect that the income which accrued to him in Madhya Bharat for the year 1949-50 could not be taxed under the Income-tax Act and that, therefore, he was not liable to pay tax, was held to be
not an objection as to the place of assessment. Since the petitioner in the present case did not specifically object to the place of assessment but merely contended before the Income-tax Officer, Jorhat, that he had no authority to reassess the petitioner, it is urged that such a contention would not amount to an objection to the jurisdiction of the officer as contemplated under Section 64 and that, therefore, an objection as to jurisdiction of the officer cannot be raised after the assessment. In Manilal Ramchand v. Commissioner of Income-tax : [1964]53ITR377(Guj) the High Court of Gujarat has held that a mere negative objection asserting that the Income-tax Officer who seeks to assess the assessee has no jurisdiction, without stating the grounds on which such a contention is based, cannot be said to raise any controversy between any two or more places of assessment which is required to be determined by the Commissioner; and if such an objection is taken the Income-tax Officer would not act illegally in abstaining from referring the matter to the Commissioner under Section 64(3).
42. But the objection taken by the petitioner as to the lack of jurisdiction is not on the ground that the Income-tax Officer, Jorhat, had no territorial jurisdiction. It is not an objection as to the place of assessment contemplated under Section 64. The objection is as to the competence of the Income-tax Officer, Jorhat, to assess the assessee.
43. In Dhaniram Dharampal v. Commissioner of Income-tax a Division Bench of the Lahore High Court considered the legal effect of the return furnished before the service of the demand notice. The return in the case was not made until after the assessment order was made, but was made before the notice of demand specified by Section 29 was served upon the assessee by the Income-tax Officer. It was held that the return furnished after the assessment order was made, though before the service of the demand notice, was not a valid return.
44. In Balchand v. Income-tax Officer : [1969]72ITR197(SC) after the appellant had been assessed to tax under Section 23(3) of the Indian Income-tax Act, 1922, for the assessment years 1945-46 and 1946-47, the Income-tax Officer issued a notice under Section 34 on June 24, 1959, calling upon the appellant to deliver a return of his total income assessable for the year ending 31st March, 1946. On 17th August, 1959, the appellant filed a return for the assessment year 1946-47 since he had misunderstood the notice served upon him and thought he was required to file the return for that assessment year. Thereafter, on 14th March, 1963, the officer issued another notice under Section 148 of the Income-tax Act, 1961, in respect of the assessment year 1946-47. One of the contentions urged by the appellant was that so long as the return submitted by the appellant on 17th August, 1959, for the assessment year 1946-47 was not considered and disposed of, the Income-tax Officer was not competent to issue a notice
for that year under either Section 34 of the 1922 Act or Section 148 of the 1961 Act While considering the contentions of the appellant it was observed by the Supreme Court as follows : [1969]72ITR197(SC) :
'He, however, submits that even if the return was not demanded, since the return for 1946-47 was filed, by the appellant the Income-tax Officer was bound to consider that return according to law and to pass appropriate orders of assessment thereon and so long as he did not do so, he was incompetent to issue a notice of reassessment either under Section 34 of the Income-tax Act of 1922, or Section 148 of the Income-tax Act, 1961. We are unable to accept that contention. The Act does not provide for any machinery for dealing with voluntary returns filed by an assessee after assessment of income for the year of assessment is completed. Such a voluntary return does not operate as a bar to the Income-tax Officer issuiug a notice of reassessment.'
45. The earlier decision of the Supreme Court in Commissioner of Income-tax v. Ranchhoddas Karsondas : [1959]36ITR569(SC) was noticed wherein it was held that where no return has been filed by the assessee within the period prescribed by Section 22(1) of the Indian Income-tax Act, 1922, the assessee is entitled in law to submit a voluntary return in answer to the general notice under Section 22(1) before assessment is completed, since a return in answer to the general notice can under Section 22(3) be filed at any time before assessment, that for filing such a return there is no limit of time and that when such a voluntary return is filed, the Income-tax Officer cannot ignore that return voluntarily filed and issue a notice of reassessment under Section 34 of the Indian Income-tax Act, 1922. The decision of the Supreme Court in Commissioner of Income-tax v. S. Raman Chettiar : [1965]55ITR630(SC) was also considered and while distinguishing both the above-said decisions it was further observed as follows--See : [1969]72ITR197(SC) :
'The principle of Ranchhoddas's case : [1959]36ITR569(SC) and S. Raman Chettiar's case : [1965]55ITR630(SC) has, in our judgment, no application to cases where a return has been filed by the assessee and assessment made and thereafter apprehending proceedings under Section 34 of the Indian Income-tax Act, 1922, the assessee files another return. Unless a notice of reassessment is issued by the Income-tax Officer, the assessee cannot, after ah order of assessment is made, submit a return of his income for the year for which he is already assessed and call upon the Income-tax Officer to assess his income. Such a proceeding would be futile. It is true that a notice under Section 34 is also a notice of assessment, but relying upon Section 22(3) the assessee may furnish a revised return to rectify an omission or wrong statement, or furnish a return pursuant to a requisition under Section 34, but he cannot seek to rectify his return on which assessment has already been made.'
46.
The return filed in August, 1959, was, therefore, held to be invalid and did not deprive the Income-tax Officer of his jurisdiction to start proceedings under Section 34 ol the Indian Income-tax Act, 1922, against the assessee. In Commissioner of Income-tax v. Khemchand Ramdas [1938] 6 ITR 414 the assessees were registered as a firm and were assessed under Section 23(4) en 17th January, 1927, on an income of Rs. 1,25,000 at the maximum rate. Being a registered firm no super-tax was levied. A notice of demand was also made before March, 1927. On 13th February, 1928, the Commissioner, in exercise of his powers under Section 33, cancelled the order registering the assessees as a fiim and directed the Income-tax Officer to take necessary action. The Income-tax Officer accordingly assessed the firm to super-tax on May 4, 1929, By Section 58, the provisions of the Act, with certain exceptions not material for the purpose of that case, were made applicable so far as may be to the charge, assessment, collection and recovery of super-tax. One of the questions which arose for decision in that case was whether the Income-tax Officer had power to make the order on 4th May, 1929, in view of the provisions of Sections 34 and 35 of the Act. While considering the question whether the notice of demand can be made any time, it was observed as follows (page 424):
'It had been argued on behalf of the appellant that the Act nowhere imposes any limit of time within which an assessment under the provisions of Sections 23 and 29 is to be made, and that the service of the notice of demand can, therefore, be made at any time. This is true. It had, in effect, been so determined by this Board in the case of Rajendranath Mukerjee v. Commissioner of Income-tax [1934] 2 ITR 71 . But it is not true that after a final assessment under those Sections has been made, the Income-tax Officer can go on making fresh computations and issuing fresh notices of demand to the end of all time.
It is possible that the final assessment may not be made until some years after the close of the fiscal year. Questions of difficulty may arise and cause considerable delay. Proceedings may be taken by way of appeal and cause further delay. Until all such questions are determined and all such proceedings have come to an end, there can be no final assessment. But, when once a final assessment is arrived at, it cannot in their Lordships' opinion be reopened except in the circumstances detailed in Sections 34 and 35 of the Act (to which reference is made hereafter) and within the time limited by those sections.'
47. After considering the language used in Sections 34 and 35 their Lordships of the Privy Council observed as follows (page 426):
'In view of these express provisions of the Act, it is in their Lordships' opinion quite impossible to suppose that the Income-tax Officer may in
every kind of circumstance and after any lapse of time make fresh assessments or issue fresh notices of demand: or that the Commissioner can direct him so to do. In their Lordships' opinion the provisions of the two Sections are exhaustive, and prescribe the only circumstances in which and the only time in which such fresh assessments can be made and fresh notices of demand can be issued.'
48. In Income-tax Officer v. S.K. Habibullah : [1962]44ITR809(SC) the Supreme Court approved the observations of the Privy Council in the above case to the effect that once a final assessment is arrived at, it cannot be reopened except in circumstances detailed in Sections 34 and 35 of the Act and within the time prescribed by these sections and it was observed as follows (page 814) :
'The orders of assessment are, subject to the provisions relating to appeals, revisions, reassessment and rectification, final; it is not open to the Income-tax Officer to reopen the assessment because he thinks fit to do so. The provisions relating to assessments and rectification or reopening thereof are exhaustive, and may not be extended by analogies.'
49. It is clear, therefore, that after the order of assessment was made by the Income-tax Officer, Calcutta, the assessment could not be reopened except under the circumstances stated in Sections 34 and 35 and within the time prescribed by those sections. It was, therefore, not open to the Income-tax Officer, Calcutta (sic) to reopen the assessment and pass an order of assessment similar to the one passed by the Income-tax Officer, Jorhat (sic). The assessment under Section 22 is the assessment of the total income of the assessee. Hence, it is deemed to include the whole of the income of the assessee wherever it may arise as the definition of 'total income' in Section 5 shows. Hence, the fact that the Income-tax Officer, Jorhat, assessed the income which arose at Jorhat and not at Calcutta, makes no difference to the effect of the order of assessment passed by the Income-tax Officer, Calcutta, earlier for the same assessment year. The bar to a reassessment after an order of assessment is not against the Income-tax Officer who passed the order of assessment only but the bar is against reassessment, irrespective of which Income-tax Officer passes the order of reassessment. The fact that the Income-tax Officer, Jorhat, made the subsequent order of assessment makes no difference to the position in law that a second assessment cannot be made once an assessment has been made for the same year under Section 22, except under Section 34 or 35. It also makes no difference that the second assessment relates to an income which arose at Jorhat and not at Calcutta. The powers of the Income-tax Officer, Jorhat, are not greater than the powers of the Income-tax Officer, Calcutta, for the purpose of reopening the assessment already made. It is immaterial that
the earlier assessment was made by the Income-tax Officer, Calcutta, The assessment made by him is nonetheless under Section 22(3) of the Act.
50. In Commissioner of Income-tax v. Bidhu Bhusan Sarkar : [1967]63ITR278(SC) the assessee voluntarily filed a return disclosing a loss before an Income-tax Officer. Before any proceedings could be completed, the assessee's place of business came, as a result of a change, within the jurisdiction of the Income-tax Officer, District 1(2), Calcutta, and the assessee's case fell within the jurisdiction of the 8th Additional Income-tax Officer of that district. On February 23, 1950, the Additional Income-tax Officer issued a notice under Section 34 of the Indian Income-tax Act, 1922. In the meantime the assessee filed another return before the principal Income-tax Officer, District 1(2), Calcutta, disclosing a loss of a bigger sum. On February 4, 1952, the Additional Income-tax Officer passed the following order (page 281):
'Mr. K. B., constituted attorney, appears and submits that the old return already submitted may be treated to be submitted in response to notice under Section 34(1)(a). The income should be taken in the assessment of the military contract income for which there is another file. The case is therefore filed.'
51. It was urged on behalf of the department before the Supreme Court that the order made by the A.I.T.O. directing that the case be filed must be held to be an invalid order as it was essential that he should have passed an order assessing the income and then determining the tax payable under Section 23, even if the result of the determination was that the tax payable was nil. It was held that even if that order was invalid, the proceedings before the A.I.T.O. cannot be considered to have continued after that order was made by him and it was observed as follows (page 286) :
'Even an invalid order terminating proceedings has the effect of terminating them; and in such a case, the appropriate method for correcting the illegality committed is to have that order vacated by appellate or other higher authorities having jurisdiction to intervene. As long as the order is not set aside, it remains in force and takes full effect. The order was not totally without jurisdiction ; at best it was an order not contemplated by law and it could not be treated as a non-existent order.'
52. In the present case the order of the Income-tax Officer, Calcutta, cannot be ignored. It cannot be said that it is an order without jurisdiction. The Income-tax Appellate Tribunal has not expressed any opinion as to the validity or otherwise of the order passed by the Income-tax Officer, Calcutta. Hence, the Income-tax Officer, Jorhat, could only proceed to take action under the provisions of the Income-tax Act which was open to him on the basis that there was already an order of assessment under Section 22 of the Act for the assessment year 1960-61. Therefore, the only course
open to the Income-tax Officer, Jorhat, if he wanted to make a fresh assessment for the same year, was to proceed under Section 34 or Section 35 if the circumstances permitted him to do so as prescribed under those sections and also within the period prescribed under those sections. Hence, the order of the Income-tax Officer, Jorhat, was without jurisdiction in the sense that he acted without the authority of law while making the reassessment for the same year.
53. Lack of jurisdiction of a court or Tribunal to decide a particular matter may be of many varieties. Lack of jurisdiction may be due to want of jurisdiction over the place, it may be due to want of jurisdiction in respect of the person; it may be due to want of proper constitution of the Tribunal or court. It may also be due to lack of authority under the law under which the court or tribunal proceeds to decide the particular matter. A reading of the order of the Appellate Tribunal makes it clear that what was not pressed by the petitioner before it was the lack of territorial jurisdiction of the Income-tax Officer, Jorhat. But the lack of jurisdiction under the provisions of the Income-tax Act to make the order of reassessment was specifically raised by the petitioner before the Tribunal. It is that jurisdiction which is lacking in the present case. It is a well-known proposition of law that consent cannot confer jurisdiction. In Tansukhrai Bodulal v. Income-tax Officer a Full Bench of this court held that there cannot be waiver of the notice under Section 34 of the Income-tax Act, 1922, as such a notice is a condition precedent for the exercise of jurisdiction to assess under that section and that the want of notice affects the jurisdiction of the Income-tax Officer to proceed with the assessment, as well as the validity of the proceeding for assessment. Hence, in the present case, the fact that the petitioner herself filed a return before the Income-tax Officer, Jorhat, can neither confer jurisdiction on the said officer nor can it be said that the petitioner has waived her right to contend that the reassessment based on such return is without jurisdiction.
54. It is further urged on behalf of the respondent that there is no specific bar in the Income-tax Act to an order of reassessment even though action is not taken under Section 34, But any tax that can be levied or collected can be only that which is authorised by the Act in view of Article 265 of the Constitution. Hence this contention has to be rejected. It is the duty of the tax collecting authorities to act strictly within the provisions of the statute. It is not open to them to say that the tax could be levied and collected from the citizen if the provisions of the statute had been complied with and that even though the provisions of the statute have not been complied with, no injustice is done to the citizen if he is compelled to pay the tax to the State. The authorities under the Act have no power which is not specifically conferred on them by the Act. They cannot claim any
power on the ground that such power is not excluded specifically under the statute. What is not authorised under the Act is necessarily outside the powers conferred on them.
55. The authorities under the Income-tax Act are empowered to levy tax in cases of escaped income under Sections 34 and 35 of the 1922 Act and the corresponding provisions of the 1961 Act. But such power is to be exercised within the limitations prescribed under those provisions. It is the intention of the legislature to thus restrict the powers of the departmental authorities in cases of escaped income. The purpose of placing such restrictions is to protect bona fide assessees and to prevent roving investigations by the departmental authorities.
56. It is urged on behalf of the respondents that the petitioner has suppressed material facts and did not disclose the income earned by her at Jorhat, in the assessment year 1960-61 to the Income-tax Officer, Calcutta, and that the return filed by her before the Income-tax Officer, Jorhat, was with the intention of avoiding proceedings being taken against her under Section 34 by the Income-tax Officer, Calcutta. The Income-tax Officer, Calcutta, is said to have issued a notice to the petitioner under Section 34 in respect of the subsequent assessment year, namely, 1961-62. It is, therefore, urged that the conduct of the petitioner must be taken into account by the court and that such conduct disentitles her to any relief under Article 226 of the Constitution. It is to be noticed that Article 265 of the Constitution declares that no tax shall be levied or collected except by authority of law. Hence, a right is conferred on the petitioner by this constitutional provision to insist tbat any tax that is levied or collected from her is only under the authority of law. Evasion of tax may render an assessee to be penalised under the provisions of the statute, if it so provides. But the court should not shut its eyes to an action taken against the citizen without the authority of law.
57. In Commissioner of Income-tax v. V. Mr. P. Firm; Muar : [1965]56ITR67(SC) , while rejecting the contention of the Income-tax Officer that the conduct of the assessees disentitled the assessees from claiming relief, it was observed as follows :
'If a particular income is not taxable under the Income-tax Act, it cannot be taxed on the basis of estoppel or any other equitable doctrine. Equity is out of place in tax law; a particular income is either exigible to tax under the taxing statute or it is not. If it is not, the Income-tax Officer has no power to impose tax on the said income.'
58. In State of Punjab v. Jullundur Vegetables Syndicate : [1966]2SCR457 , the Supreme Court has observed as follows while dealing with the
interpretation of taxing statutes:
'It is a settled rule of construction that in interpreting a fiscal statute the court cannot proceed to make good the deficiencies, if there be any, in the statute ; it shall interpret the statute as it stands and, in case of doubt, it shall interpret it in a manner favourable to the taxpayer: see C. A. Abraham v. Income-tax Officer : [1961]41ITR425(SC) . In considering a taxing Act, the court is not justified in straining the language in order to hold a subject liable to tax.'
59. In Champalal Binani v. Commissioner of Income-tax : [1970]76ITR692(SC) it has been held that a petition for a writ of certiorari lies to the High Court where the order is on the face of it erroneous or raises the question of jurisdiction or of infringement of fundamental rights of the petitioner. Since the order of reassessment passed by the Income-tax Officer, Jorhat, is on the face of the proceeding without the authority of law the petitioner is entitled to relief. Hence, both the points are answered in favour of the petitioner.
60. The writ petition is, therefore, allowed and the impugned order of assessment and the notice of demand dated March 24, 1965, are quashed. Consequently, the impugned orders dated November 26, 1968, and November 24, 1969, are set aside.
61. Respondents are directed to refund the sum of Rs. 10,000 collected
from the petitioner.