DIXIT, J. - This is an application by the petitioners styling themselves as the firm Messrs. Sarupchand Hukumchand of Indore, under Article 226 of the Constitution of India, for a writ of certiorari and a writ of prohibition or a writ of like nature or an order for quashing a provisional assessment of the tax payable by the firm for the assessment year 1950-51, made by the Income-tax Officer, Indore, under Section 23B of the Income-tax Act, 1922, and for restraining the opponents from enforcing the assessment order and a notice of demand dated 19th February, 1952, by which the applicants were directed to pay the amount of the tax, namely Rs. 2,58,154-8-0 on or before 29th February, 1952. The petitioners have also filed another application in these proceedings challenging the propriety and validity of an order said to have been made on 29th February, 1952, by the Income-tax Officer, ignoring an order of interim injunction issued by this Court on 29th February, 1952, prohibiting the Income-tax Officer from taking any action to enforce the provisional assessment and the notice of demand dated 19th February, 1952, and imposing a penalty of Rs. 25,000 for the failure of the petitioners to pay the amount of the tax before the time fixed for its payment.
The case of the petitioners before us is that until 31st March 1950, they carried on business as a firm of shroffs and also dealt in gold, silver speculation business and that the firm had its offices at Bombay, Calcutta, Ujjain and Indore; that on or about 25th November, 1950, the Income-tax Officer, A Ward, Indore, issued a notice under Section 22 of the Income-tax Act (hereinafter referred to as the Act) to sir Hukumchand, a member of the petitioner-firm requiring him to make a return of his income for the income-tax assessment year 1950-51. In response to this notice, Sir Hukumchand while submitting a return under protest, addressed a letter dated 19th December, 1950, to the Income-tax Officer saying that as the Act was made applicable to Madhya Bharat only from 1st April, 1950, he could not be asked to furnish a return of his income prior to 1st April, 1950, or assessed any tax on that income. In the latter Sir Hukumchand also stated that he was a member of Hindu undivided family and as such had no separate source of income and further that he was submitting the return of the income 'with a view to avoid penal action without admitting any liability to tax under the Indian Income-tax Act for 1950-51'. On 6th January, 1951, the Income-tax Officer informed sir Hukumchand that the return of the income required from him was of the Hindu undivided family and not in his capacity as an individual and that accordingly in the return the income accruing to the family be shown.
Nothing was done regarding the filing of a return of the income of the undivided family until 4th January, 1952. On this date, the Income-tax Officer sent a latter to Sir Hukumchand drawing his attention to the fact that although a notice under Section 22(2) of the Act had been duly served on him as far back as 25th November, 1950, he had not submitted a return of the total income and total world income for the assessment year 1950-51. After referring to the provisions of the Act with regard to his power to make an assessment to the best of his judgment in default of a return, the Income-tax Officer advised Sir Hukumchand to furnish a return of the income without any further delay. The Income-tax Officer also mentioned in this letter.
'that as a special case it has been decided by the Government that tax-demand for the assessment year 1950-51 will not be enforced till the decision of the Supreme Court in the appeal pending before them.'
We are informed by the learned Counsel for the parties that the appeal referred to in this letter is an appeal from the decision of the Rajasthan High Court in Madan Gopal v. Union of India. As a sequel to this letter Sir Hukumchand filed on 18th February, 1952, a return of the total income and the total world income accruing to his Hindu undivided family during the previous year ending on 31st March, 1950.
In the return which was marked as 'under protest' the principal place of business was shown as Indore; the income arising in Madhya Bharat was shown as Rs. 18,84,604 while the income arising without Madhya Bharat was shown as Rs. 3,37,380. On receipt of the return, the Income-tax Officer made a provisional assessment of the tax on the income arising outside Madhya Bharat and assessed the petitioners to a tax of Rs. 2,58,154-8-0 in respect of the income and gave a notice to Sir Hukumchand on 19th February, 1952, to pay the amount of the tax on or before 29th February, 1952. On this very date, the Income-tax Officer wrote a letter to Sir Hukumchand explaining the provisional assessment and pointing out to him the fact that the assurance given by him in his letter of 4th January, 1952, related to the postponement of the assessment of the income accruing in Madhya Bharat only and not to the postponement of the assessment of the income arising outside Madhya Bharat, about the assessment of which there was no dispute. Thereafter on 28th February, 1952, this application was presented and the petitioners obtained from this court on 29th February, 1952, an order restraining the non-applicants from enforcing or taking any steps to enforce the provisional assessment order and the notice of demand of the tax. This order was served on the Income-tax Officer on 3rd March, 1952. But it appears that in the meantime the Income-tax Officer passed an order on 29th February, 1952, recording the fact that the amount of tax provisionally determined as payable by Sir Hukumchand had not been paid till the close of the treasury on 29th February, 1952, and imposing upon him a penalty of Rs. 25,000 under Section 46(1) of the Act.
In this petition, the validity of the assessment is questioned on the grounds that (1) as Madhya Bharat became a taxable territory from 1st April, 1950, the income accruing or arising to the petitioners or received by them before this date was not liable in Madhya Bharat to any income-tax or super tax and that, therefore, the Income-tax Officer had not power or authority to assess the petitioners to any tax for the assessment year 1950-51 on any income whether arising within or without Madhya Bharat; (2) that Parliament had no power to make any law imposing income-tax or super-tax on any income accruing or arising in Madhya Bharat prior to 26th January, 1950; (3) and that no proper or valid notice was issued or served on the petitioners under Section 22(2) of the Act. The petitioners also make a grievance that in making the provisional assessment of the tax on income arising outside Madhya Bharat the Income-tax Officer has gone behind the assurance given by him in his letter dated 4th January, 1952.
It is further said that for the last several years the petitioners had been assessed to tax by the Income-tax Officer, Bombay, in respect of their income arising outside Madhya Bharat and that the income-tax Officer of Indore had no jurisdiction to change the place of assessment and asses the petitioners in Indore in respect of the said income. At the hearing of this petition the petitioners filed a further affidavit stating that they had already filed before the Income-tax Officer, Bombay, returns of the income of the firm of Messrs. Sarupchand Hukumchand for the assessment years 1948-49, 1949-50 and 1950-51. It is, however, admitted in para 3 of this affidavit, that no return for the assessment years 1949-50 and 1950-51 of the income of the Hindu undivided family of Sir Hukumchand has been filed before the Income-tax Officer, Bombay.
The facts and circumstances narrated above, in which the provisional assessment was made and the notice of demand was issued to the petitioners, are not dispute by the non-applicants. It is, however, denied by them that during the material period the petitioners were a firm carrying on business in Bombay, Indore and other places. The non-applicants maintain that the status of the petitioners according to the return filed by them is that of a Hindu undivided family. As to the grounds on which the petitioners challenge the assessment, the rejoinder of the Income-tax Officer, Indore, is that Section 3 read with proviso (b) to Section 2(14A) of the Act authorises the levy of the tax on incomes which accrued, arose or were received in Madhya Bharat prior to 1st April, 1950; that Parliament has the power under Article 246 of the Constitution read with the agreement entered into between the President of India and the Raj Pramukh of Madhya Bharat on 26th February, 1950, to impose tax on income which accrued, arose or was received in Madhya Bharat prior to 26th February, 1950, and that the provisions of the Indian Income-tax Act, 1922, and the Indian Finance Act, 1950, which authorise the levy of the tax for the year 1950-51 are neither ultra vires nor illegal.
As regards the validity of the notice the non-applicants stated in para 11A of the return that 'the validity or otherwise of the notice under Section 22(2) has no importance for the point to be decided by the Honourable High Court. A return can be filed either voluntarily under Section 22(1) or by an order of the Income-tax Officer under Section 22(2). The provisional assessment now in dispute was made after the receipt of such a return and hence the objection of the petitioners is uncalled for.'
The opponent No. 2 also submits in his reply to the petition that as under the Act a person can be assessed only by one Income-tax Officer on all income arising at different places, he had jurisdiction to assess the petitioners to tax in respect of the income arising outside Madhya Bharat. According to non-applicant 2 the assurance contained in his letter dated 4th January, 1952, was only with regard to the postponement of the assessment of the tax on the petitioners income in Part B States. Lastly, it is submitted in the return that the petitioners have no case for the issue of any of the writs prayed for and that they have other specific and adequate legal remedy for challenging the provisional assessment.
It will be seen from what has been stated above that the petitioners have been assessed to tax for the assessment year 19150-51 and not on the income which accrued to them in Madhya Bharat but on the income arising without Madhya Bharat, to wit in Part A States. The liability of the petitioners to pay tax on this income on an assessment in a Part A State is not disputed before us. The main complaint of the applicants is that the Income-tax Officer, Indore, has no jurisdiction to assess them to tax on the income which they derived from without Madhya Bharat during the year ending on 31st March, 1950; that it is the competent Income-tax Officer in Part A State who alone can make an assessment of tax on this income, and that as a matter of fact assessment proceedings in respect of this income are pending before the Income-tax Officer, Bombay. The real question for decision, therefore, is as to the jurisdiction of the Income-tax Officer, Indore, to assess the petitioners to tax in respect of the income which accrued to them outside Madhya Bharat in the assessment year 1950-51.
But Mr. Kolah the learned Counsel appearing on behalf of the petitioners has made the question of the assessability of the income which accrued to the applicants within Madhya Bharat in the year ending on 31st March, 1950, as the foundation of his attack on the jurisdiction of the Income-tax Officer, Indore, to tax the income which the applicants derived from without Madhya Bharat. It, therefore, becomes necessary to consider the question whether the income which accrued to the petitioners in Madhya Bharat in the accounting year 1949-50 is liable to tax.
I do not propose to set out here the elaborate and helpful arguments of the learned Counsel for the petitioners and of Mr. Chitale the learned Advocate-General of Madhya Bharat who appeared on behalf of the Union of India. A reference will be made to them, where necessary, while dealing with the questions raised by the submissions made by the learned Counsel. The questions are : (1) whether under Section 3 read with Section 2(14A) of the Act, the income accruing to the petitioner in the accounting year 1949-50 in Madhya Bharat is liable to tax; (2) whether if the said income is not liable to tax, the Income-tax Officer, Indore, can assess tax on the petitioners income which accrued to them in Part A States during the year ending on 31st March, 1950; (3) whether the provisions of the Indian Income-tax Act, 1922, as amended by the Indian Finance Act, 1950, in so far as they authorise the levy of the tax on income accruing in Madhya Bharat in the period prior to 26th January, 1950, are ultra vires; (4) whether the notice issued to the petitioners under Section 22 of the Act requiring them to submit a return of their undivided family was a valid notice; and (5) whether the petitioners raised before the Income-tax Officer, Indore, an objection as to the place of assessment; and, if they did; whether the Income-tax Officer was right in making the assessment without Following the procedure laid down in Section 64(3) for the determination of the question as to the place of assessment.
The first two questions involve the true construction of Section 2(14A) of the Act and the proviso to it or really the construction of the proviso. Before considering the proviso, it is pertinent to observe that the Income-tax Act, 1922, was made applicable to Madhya Bharat from 1st April, 1950. Prior to this date, there was no law imposing tax on income in the territories comprising of the former Indore State or of any other covenanting State of Madhya Bharat. The Finance Act, 1950, amended the Income-tax Act and made it applicable to the whole of India except the State of Jammu and Kashmir and inter alia introduced in the Act a definition of the term 'taxable territories.' Now under Section 3 of the Act, income-tax is charged at the rate or rates fixed for the year by the annual Finance Act. The charge is on every individual, Hindu undivided family, company, local authority, firm itself or partners of the firm individually, and other association of person or the members of the association individually. The income taxed is that of the pervious year and not of the year of assessment. The levy of the tax is on the total income of the assessee computed in accordance with and subject to the provision of the Act. Section 2(15) defines 'total income' as 'total amount of income, profits and gains referred to in sub-section (1) of Section 4 computed in a manner laid down in this Act.'
The material provision of Section 4(1) is as follows :
'Subject to the provisions of this Act, the total income of any previous year of any person includes all income, profits and gains from whatever source derived which -
(a) are received or are deemed to be received in the taxable territories in such year by or on behalf of such person, or
(b) if such person is resident in the taxable territories during such year, -
(i) accrue or arise or are deemed to accrue or arise to him in the taxable territories during such year, or
(ii) accrue or arise to him without the taxable territories during such year, or
(iii) having accrued or arisen to him without the taxable territories before the beginning of such year and after the 1st day of April, 1933, are brought into or received in the taxable territories by him during such year, or
(c) if such person is not resident in the taxable territories during such year, accrue or arise or are deemed to accrue or arise to him in the taxable territories during such year.'
The effect of Section 3 and 4 is to tax the person resident in the taxable territories during the previous year, that is, the year previous to the year of assessment of all his income whencesoever derived and to tax the person not resident in the taxable territories upon all income which accrued or deemed to have accrued to the person in the taxable territories during the previous year.
It is thus clear from Section 3 and 4 of the Act that if Madhya Bharat was a taxable territory in the year ending on 31st March, 1950, the petitioners are assessable by reference to the income which they derived within or without Madhya Bharat in that year. Learned Counsel for the petitioners, however, contends that under Section 2(14A) Madhya Bharat became a taxable territory from 1st April, 1950, and was not a taxable territory during the accounting year 1949-50. In support of this contention he strongly relied on the decision of the Rajasthan High Court in Madan Gopal v. Union of India, which he read out to us in extenso. He supplemented the reading by addressing arguments to emphasise the conclusion arrived at by the learned Judges of the Rajasthan High Court and their reasons for the conclusions.
Mr. Chitale, on the other hand, urged that though under sub-clauses (d) and (e) of Section 2(14A) Madhya Bharat became a taxable territory from 1st April, 1950, the proviso (b)(iii) to that section treats Madhya Bharat as if it were a taxable territory during the period from 1st April, 1949, to 31st March, 1950, for the purpose of making any assessment and that on a plain and natural construction of the wording of clause (b)(iii) of the proviso, the income which accrued to the petitioners in the year ending on 31st March, 1950, was chargeable to income-tax under section 3 of the Act. The question raised must, therefore, be decided by an examination of the provisions of Section 2(14A). This section classifies 'taxable territories' into five categories as respect different periods of time. I do not propose to burden the judgment with the details of the now too well-know historical changes in the territory of India during the years 1947-50 which form the basis of the classification in Section 2 (14A). They have been noted with clarity in para 16 of the decision of the Rajasthan High Court. For our purposes it is sufficient to refer to the material provisions of Section 2(14A) These are as follows :-
'Taxable territories' means -........................................................... ........... ........................................................... ..........
(d) as respect any period after the 31st day of March, 1950, and before the 13th day of April, 1950, the territory of India excluding the State of Jammu and Kashmir and the Patiala and East Punjab States Union, and
(e) as respects any period after the 12th day of April, 1950, the territory of India excluding the State of Jammu and Kashmir :- Provided that the taxable territories shall be deemed to include -........................................................... ......... ........................................................... .........
(b) The whole of the territory of India excluding the State of Jammu and Kashmir -
(i) as respects any period, for the purposes of Sections 4A and 4B,
(ii) as respects any period after the 31st day of March, 1950, for any of the purposes of this Act, an
(iii) as respects any period included in the previous year for the purpose of making any assessment of the year ending on the 31st day of March, 1951, or for subsequent year.'
It will be noted from these provisions that if the matter stood alone on clauses (d) and (e) of Section 2(14A) without the proviso, then the territories of Madhya Bharat could not be regarded as taxable territories during the accounting year 1949-50 and the Income-tax Officer, Indore, would have no jurisdiction to assess the petitioners on the income which accrued to them in Madhya Bharat during that year. But when the words of the proviso (b) are written in, as they must be written in, to Section 2(14A) then on a true construction of the proviso, a fiction is created and the whole of the territory of India including Madhya Bharat but excluding the State of Jammu and Kashmir is regarded as taxable territory as respects certain periods and certain purpose not otherwise covered by clauses (d) and (e) of the substantive part of the definition of 'taxable territory' given in Section 2(14A). Thus, so far as Madhya Bharat is concerned, whereas under clauses (d) and (e) of the substantive part of the definition 'taxable territory', it is not a taxable territory as respects any period prior to 1st April, 1950, it is deemed to be such under the proviso (b)(i) for the purpose of Sections 4A and 4B. I do not think that the words 'any period' in clause (b)(i) of the proviso can be construed as meaning any period after 31st March, 1950. For to do so is to ignore the full effect of the words 'shall be deemed to include' which occur in the proviso. Sub-clause (ii) of clause (b) of the proviso regards the whole of the territory of India excluding the State of Jammu and Kashmir as taxable territory as respects any period after 31st March, 1950, for any of the purpose of the Act.
When it is remembered that under clauses (d) and (e) of the definition the Patiala and East Punjab States Union become taxable territory from 13the April, 1950, the effect of this sub-clause of the proviso is inter alia to artificially regard the Patiala and East Punjab States as a taxable territory from 1st April, 1950, fro any of the purposes of the Act. But on a plain and natural meaning of the words of this clause, this does not appear to me the sole object of th clause. It is also to place beyond dispute the fact that it is not for any particular purpose or purposes that the whole of the territory of India is a taxable territory as respects any period after 31st March, 1950, but that it is so, for any of the purposes of the Act. This clause, as the learned Advocate-General suggested, enables the authorities appointed under the Act to set in motion the whole procedure laid down in the Act from 1st April, 1950, in the territories which were before this date not taxable territories and where the machinery under the Act did not exist. To me, it seems that the combined result of sub-clauses (i) and (ii) of clause (b) of the proviso, so far as the petitioners are concerned, is to give jurisdiction to the Income-tax Officer, Indore, to charge them to tax in respect of the income which accrued to them in the year ending on 31st March, 1950, in a taxable territory without Madhya Bharat, it being an income which accrued to the petitioners who are deemed to be 'resident' in the taxable territories of Madhya Bharat in that year under sub-clause (i) of (b) of the proviso. Coming now to sub-clause (iii) of clause (b) of the proviso, we find its language plain enough. It makes the whole of the territory of India including Madhya Bharat and excluding the State of Jammu and Kashmir a taxable territory during the period from 1st April, 1949, to 31st March, 1950, for the purpose of making any assessment of the year ending on 31st March, 1951. Under this clause the income which accrued to the petitioners in Madhya Bharat during the period 1st April, 1949, to 31st March, 1950, is an income which accrued in a taxable territory for the purpose of making any assessment of the year ending on 31st March, 1951.
At this stage it would be convenient to refer to the decision of the Rajasthan High Court on which the learned Counsel for the petitioners has founded his arguments, and the reasoning and the conclusions of which he commends us for acceptance. In that case the question arose whether under the Indian Income-tax Act, 1922, income accruing or arising in Rajasthan (which is also like Madhya Bharat a Part B State) before it became on 1st April, 1950, a taxable territory under the Act, was liable to income-tax. One of the contentions that was put forward on behalf of the petitioner, one Madan Gopal Kabra, in that case was that as Rajasthan was not a taxable territory territory during the accounting year 1949-50, he was immune from liability to assessment on the income of that year. In answer to this contention, the Counsel appearing for the Union of India relied on clause (b)(iii) of the proviso to Section 2(14A) of the Act to show that income arising or accruing in the year from 1st April, 1949, to 31st March, 1950, in Rajasthan was liable to tax. The learned Judges of the Rajasthan High Court while accepting the contention of the petitioner before them observed that clauses (d) and (e) of Section 2(14A) made Rajasthan a taxable territory 1st April, 1949, to 31st March, 1950, and 'the extended meaning given by the proviso was to be restricted so far as may be expressly stated therein.'
They dealt with the proviso in para 18 of their judgment as follows :-
'The proviso (b) can be divided into three portions and the whole of the territory of India (excluding Jammu and Kashmir) is declared to be the taxable territory of India, firstly as regards any period for the purpose of Sections 4A and 4B. These sections relate to a definition of persons who may be classed as residents or not ordinarily residents in taxable territories in any year, and residence for certain periods prior to the year for which assessment has to be made is directed to be taken into account. The first clause in proviso (b) means to say that the earlier residence in Part B States will be taken to be residence in taxable territories while taking account of the residence for a certain prior period. The said proviso secondly declared the whole of the said territory to be taxable territory as respects the period after 31st March, 1950, for any of the purpose of Income-tax Act, 1922. So far as Rajasthan is concerned, the same matter is stated in clause (d) of the definition, but it also makes Patiala and East Punjab States Union as taxable territories for the period from 1st April to 12th April, although according to clause (e) in the definition it was not declared to be taxable territory in that clause. Clause (ii) of the proviso was obviously enacted in order to get over the difficulty of separate assessment of tax for the period from 1st April to 12th April as regards individuals in Patiala and East Punjab States Union.
In this second clause the words for any of the purposes of this Act clearly signify that the aforesaid territory including Rajasthan is a taxable territory for the purposes of levy, assessment and collection of income-tax. In the third clause, the whole of the territory of India (excluding Jammu and Kashmir) is declared to be taxable territory as regards any period included in the previous year for the purposes of making any assessment of the year ending on 31st March, 1951, or for any subsequent year. Assuming for the moment that the words assessment of the year mean the same thing as assessment for the year and assuming that the previous year of the individuals affected runs from 1st of April of any year to 31st day of March of the succeeding year, the previous year referred to in the clause for the purpose of making any assessment in the year beginning on 1st April, 1950, and ending on 31st March, 1951, would be the year from 1st April, 1949, to 31st March, 1950, but the proviso makes the whole of the territory of India taxable territory only for the purpose of making any assessment of the year 1950-51, and for no other purpose. According to the scheme of the Indian Income-tax Act, it is divided into seven chapters, and while charge of income-tax is dealt with in Chapter I, the assessment is dealt with in Chapter IV.
Their Lordships of the Privy Council have observed in the case of Commissioner of Income-tax, Bombay Presidency and Aden v. Khemchand Ramdas that :
One of the peculiarities of most Income-tax Act is that the word assessment is used as meaning sometimes the computation of income, sometimes the determination of the amount of tax payable, and sometimes the whole procedure laid down in the act for imposing liability upon the tax payer. The Indian Income-tax Act is no exception in this respect.
Section 23, which occurs in Chapter IV, refers to assessment as the marginal note to the section indicates and the word assess and its derivatives assessment and assessed have been used in the sense of computation of income. In our opinion, it is at best in the sense of the determination of the amount of tax payable that the word has been used in clause (iii) and not in the sense of the whole procedure laid down in the Act for imposing liability upon the taxpayer.'
The learned Judges of the Rajasthan High Court further said in para 19 of the judgment that :-
'In order that persons may not escape taxation during the intervening period from 1st April, 1949, to 31st March, 1950, in areas where there existed law relating to income-tax, the provision appears to have been made in clause (iii) of proviso (b) to Section 2(14A). This clause makes the territory in which tax was leviable by any other law as also taxable territory for the purpose of making assessment in the year 1950-51. The language used in clause (iii) is for the purpose of making any assessment of the year ending on the 31st day of March, 1951. As observed earlier, there are three stages in connection with the imposition of a tax. The first is the declaration of liability, the second is the assessment and the third is the collection. This clause makes the territory a taxable territory for the purpose of making any assessment, but not for the purpose of chargeability. The chargeability is left to arise by some other law, and that law is the previous State law referred to in Section 13 of the Finance Act, 1950.'
As to Section 13 of the Finance Act, 1950, it was observed in the Rajasthan High Court decision that it kept alive the State law not only for the purpose of levy, assessment and collection of income-tax on the income of the year 1948-49, but also for the above purpose in the subsequent year and that, therefore, the income accruing or arising in Rajasthan for any period to 1st April, 1950, was chargeable to income-tax not under the Indian Income-tax Act but under the State law, if any, in force prior to 1st April, 1950. It is important to note that the ratio decidendi of the decision in Madan Gopal Kabras case that income accruing or arising in Rajasthan in the year from 1st April, 1949, to 31st March, 1950, was not liable to tax under the Indian Income-tax Act, is not that Rajasthan was not a taxable territory under the Act during that year. But it is that it was a taxable territory for the purpose of making an assessment only not for the purpose of chargeability under the Indian Income-tax Act.
Learned Counsel for the Union of India has no quarrel with the meaning put by the Rajasthan High Court on the first sub-clause of clause (b) of the proviso. As to the other two sub-clause, his criticism is that the learned Judges of the Rajasthan High Court have not construed the words of these sub-clauses according to their plain and natural meaning. It is said that the purpose of the second sub-clause is not only to make the Patiala and East Punjab States Union a taxable territory from 1st April, 1950, but it is also to enable the assessment machinery being set up in the taxable territories where it did not exist before 1st April, 1950, and further that the first two sub-clauses of the proviso (b) read with Section 64 of the Act give to the Income-tax Officer, Indore, jurisdiction to asses to tax the income which accrued to the petitioners in the accounting year 1949-50 outside Madhya Bharat in a taxable territory. It was further argued that if in enacting sub-clause (ii) of clause (b) of the proviso, the intention had been only to make the Patiala and East Punjab States Union a taxable territory from 1st April, 1950, the Legislature would have used in sub-clause (ii) a specific language to that effect and not a general language such as is found in that sub-clause.
With regard to sub-clause (iii), the argument of Mr. Chitale is that chargeability under the Indian Income-tax Act is determined on the definition of the term 'taxable territory' and if under the Act, a territory is a taxable territory during any particular year, then there can be no escape from the conclusion that the income for that year is chargeable under the Indian Income-tax Act. The learned Advocate-General of Madhya Bharat proceeded to argue that as the intention to charge a tax in respect of the income accruing in the year from 1st April, 1949, to 31st March, 1950, was apparent on the face of the Indian Income-tax Act, it was not open to the Court to cut down the general words imposing the tax by reference to extraneous considerations such as the report of the Indian States Finance Inquiry Committee, or possible intention of the Legislature gathered from other Acts, and that Section Section 13 of the Finance Act, 1950, is perfectly intelligible if it is read as keeping alive the State law for the purposes of levy, assessment and collection of tax on the income of the period before 31st March, 1949.
In my view, there is considerable force in the argument of the learned Counsel appearing on behalf of the Union of India. I have already indicated above the construction that ought to be put on the first sub-clause of clause (b) of the proviso. It is in no way different from that put by the Rajasthan High Court. As to the second sub-clause, I have already said that its object is not merely to make Patiala and East Punjab States Union a taxable territory from 1st April to 12th April, 1950, the period not included in the definition under clause (e); it is also to exclude the risk of a territory declared to be a taxable territory from 1st April, 1950, not being so regarded for all purposes and to set in motion the whole machinery laid down in the Act for imposing liability on the taxpayers where the machinery already did not exist. I, however, part company with the learned Judges of the Rajasthan High Court when they say that although clause (b)(iii) of the proviso makes a Part B State like Rajasthan or Madhya Bharat a taxable territory as respects the period from 1st April, 1949, to 31st March, 1950, it is only for the purpose of making assessment of the year ending or 31st March, 1951, and not for the purpose of the chargeability which is left to arise not under the Indian Income-tax Act but under some other law. With the greatest respect for the opinion of the learned Judges of the Rajasthan High Court, I do not think that such a construction of clause (b)(iii) of the proviso is warranted either by the language of the sub-clause or by the scheme of the Indian Income-tax Act, 1922.
The definitions of the term 'taxable territory' and of other words and expressions in the Act are for the purpose of construing the provisions of the Act wherever the words and the expressions are used. It is with reference to the definition given in Section 2(14A) of the term 'taxable territories' that Sections 3 and 4 of the Act which according to the decision of the Federal Court in Chhattu Ram v. Commissioner of Income-tax, Bihar are charging sections, have to be read. The expression 'taxable territory' is the pivot round which the questions of assessability and chargeability under the Act turns. Under Section 4 in many cases the question of assessability depends on the accrual or receipt of income in the taxable territories. Again, chargeability varies with the factor of residence, which has been defined in the Act with reference to the 'taxable territories'. It is clear from a careful reading of Sections 3, 4, 4A, 4B and 2(14A) of the Act that once it is held that under clause (b)(iii) of the provisos to Section 2(14A) a Part B State is during the period from 1st April, 1949, to 31st March, 1950, which is a period included in the previous year for the purpose of making an assessment of the year ending on 31st day of March, 1951, or for any subsequent year, a taxable territory, it follows as a necessary and logical conclusion that chargeability of the income accruing in that year to tax arises under Section 3 and 4 of the Act. There can be no question of assessment under the Indian Income-tax Act, of tax on the income accruing in any particular year, if the liability to tax under the Act is not already in existence.
As observed by Lord Dunedin in Whitney v. Commissioners of Inland Revenue there are three stages in the imposition of a tax. He said : - 'There is the declaration of liability, that is the part of the statute which determiner what persons in respect of what property are liable. Next there is the assessment. Liability does not depend on assessment. That ex hypothesi has already been fixed. But assessment particularises the exact sum which a person liable has to pay. Lastly, come the methods of recovery if the person taxed does not voluntarily pay.'
This passage has been relied upon in the Federal Court decision referred to above. The observation, 'Liability does not depend on assessment. That ex hypothesi has already been fixed', is important and deserves to be noted. It shows that assessment under any Act presupposes the existence of a liability to tax under that Act. That liability exists in the Indian Income-tax Act under Sections 3 and 4. The deciding factor which seems to have weighed with the Rajasthan High Court in coming to the conclusion that chargeability does not arise under the Indian Income-tax Act is the use of the words 'for the purpose of making any assessment' in sub-clause (iii) of clause (b) of the proviso. I can see no ground for treating these words as excluding the operation of the charging sections in respect of the income accruing in the previous year referred to in clause (b)(iii) of the proviso. With all respects to the learned Judges of the Rajasthan High Court, the construction put by them on this sub-clause fails to take account of the fundamental fact that assessment under the Indian Income-tax Act presupposes liability to tax under that Act, and altogether renders the sub-clause nulgatory and purposeless. If the charge of tax on the income accruing in the year 1949-50 is to arise not under the Indian Income-tax Act but under some other law, it is difficult to see the object and the purpose with which this sub-clause was introduced in the Indian Income-tax Act.
In Kabras case Section 13 of the Finance Act, 1950, has been referred to as supporting the view that the income accruing to a person in a Part B State in the accounting year 1949-50 is not chargeable under the Indian Income-tax Act but under a State law, if any. The relevant portion of Section 13of the Finance Act is as follows :-
'If immediately before the 1st day of April, 1950, there is in force in any Part B State other than Jammu and Kashmir or in Manipur, Tripura or Vindhya Pradesh or in the merged territory of Cooch Bihara any law relating to income-tax or super-tax or tax on profits of business, that law shall cease to have effect except for the purposes of the levy, assessment and collection of income-tax and super-tax in respect of any period not included in the previous year for the purposes of assessment under the Indian Income-tax Act, 1922 (XI of 1922), for the year ending on the 31st day of March, 1951, or for any subsequent year, or, as the case may be, the levy, assessment and collection of tax on profits of business for any chargeable accounting period ending on or before the 31st day of March, 1949.'
In regard to this section, it has been said by the learned Judges of the Rajasthan High Court that under this section the State law is kept alive not only for the purpose of levy, assessment and collection on the income of the year 1948-49, but also for the above purpose in the subsequent year. So that if prior to 1st April, 1950, there was a law imposing income-tax in any part of Part B States, then the income accruing in that part in the year from 1st April, 1948, to 31st March, 1949, as also in the year 1st April, 1948, to 31st March, 1950, would be chargeable under the State law and not under the Indian Income-tax Act. I am unable to agree with this reading of Section 13 of the Finance Act, 1950. To my mind, Section 13 of the Finance Act preserves the operation of the State law imposing income-tax, super-tax or tax on profits of business for the purpose of levy, assessment and collection of the tax only in respect of the income accruing in the period before 31st March, 1949. It does not permit of the income accruing in any Part B State in the year 1st April, 1949, to 31st March, 1950, being charged to tax under the State law. For the period from 1st April, 1949, to 31st March, 1950, though not included in the previous year for the purposes of assessment for the year ending on 31st March, 1952, is included in the previous year for the purpose of assessment for the year ending on 31st March, 1951. Thus the period not included in the previous year for the purposes of assessment for any subsequent year would be included in the previous year for the purposes of assessment for the year before.
The words used in Section 13 are not 'the subsequent year' but they are 'any subsequent year'; and if the reasoning of the Rajasthan High Court is accepted, then one is led to the strange conclusion that the State law is to continue in force under Section 13 of the Finance Act for the levy, assessment and collection of the tax on income accruing not only in the year from 1st April, 1948, to 31st March, 1949, but also accruing in all the subsequent years. In other words, the provision in Section 13 of the finance Act, 1950, repealing the State law except for a very limited purpose and the provisions of the Indian Income-tax Act in their applicability to Part B States become wholly ineffective. It is highly improbable that this was the intention of Section 13 of the Finance Act or of the other provisions of that Act by which the Indian Income-tax Act was amended and made applicable to Part B States.
Learned Counsel for the petitioners also urged that the Income-tax Act has no retrospective operation and that when the Act was made applicable to this State only from 1st April, 1950, it cannot be construed so as to permit taxation under the Act of the income accruing in the State before 1st April, 1950. In reply, the Counsel for the Union of India said that the Act no doubt came into force in Madhya Bharat on 1st April, 1950, but as under Section 3 of the Act it is the income accruing during the previous year which is taxed in the subsequent year, that is, the year of assessment, and as the proviso to Section 2(14A) makes this State a taxable territory during the previous year 1949-50, the act is operative to levy tax on the income accruing in Madhya Bharat in the year 1st April, 1049, to 31st March, 1950, and the Act to this extent is retrospective. The contention may be disposed of by saying that when, as I have already shown, the express words of the proviso to Section 2(14A) make the income accruing in Madhya Bharat in the year from 1st April, 1949, to 31st March, 1950, chargeable t tax under the Act, the effect of these words cannot be narrowed or whittled down by applying a rule of construction about statues which are not by express words or necessary intendment retrospective.
For all these reasons, I am disposed to accept the argument of the learned Counsel for the Union of Indian and hold that the income which accrued to the petitioners in the year from 1st April, 1949, to 31st March, 1950, in Madhya Bharat is chargeable to sex under the Indian Income-tax Act, and that irrespective of whether this income is or is not chargeable under the Act, sub-clause (i) and (ii) of clause (b) of the proviso of Section 2 (14A) read with Section 64 give jurisdiction to the Income-tax Officer, Indore, to tax the petitioners in respect of the income which they derived in that year from without Madhya Bharat.
As to the contention of the learned Counsel for the petitioners that Parliament has no power to make a law imposing income-tax in Madhya Bharat on income accruing before 26th January, 1950, the argument is the under the Government of India Act, 1935, the Indian Legislature had no power to make laws for Indian States with regard to any matter; that this limitation on the power of the Legislature was continued under Section 8 (3) of the Indian Independence Act, 1947, and the Dominion Legislature also had no power to make any law for the Indian States; that the Dominion Legislature derived the power to make laws for Madhya Bharat with respect to certain matters by an Instrument of Accession executed by the Raj Pramukh under Article VIII of the Covenant of 1948 by which the United State of Gwalior, Indore and Malwa (Madhya Bharat) was brought into existence; that the Instrument of Accession excluded the authority of the Dominion Legislature to impose any tax in the territory of Madhya Bharat; that the Covenant under which the Instrument of Accession was executed was a law in force in Madhya Bharat immediately before the commencement of the Constitution; that this law has been continued under Article 372 of the Constitution and that, therefore, Parliament has no power to impose tax on income accruing in Madhya Bharat before 26th January, 1950. This argument does not impress me. It is based on a misconception of the constitutional position of this State before and after 26th January, 1950.
The Covenant under which this State was constituted is, as pointed out by a Full Bench of this Court in Shri Ram Dube v. Government of the State of Madhya Bharat not a statute. I said in that case that the Covenant was, as its name implies, a compact between the signatories to the Covenant, the object of which was to secure the welfare of the people of the region by the establishment of a new State comprising of the territories of the Covenanting States with a common Executive, Legislature and Judiciary. The Covenant did not, and indeed could not, put restrictions on the powers of the Dominion Legislature. The limitation on the powers of the Dominion Legislature to make laws for Indian States arose under the provisions of the Government of India Act, 1935, itself. Section 6 of the Government of India Act permitted the Ruler of an Indian State to accede to the Dominion of India by executing an Instrument of Accession specifying inter alia the matters with respect to which the Dominion Legislature could make laws for the State. Section 101 of the Government of India Act, 1935, made it clear that the Dominion Legislature could make laws for an Acceding State only in accordance with the Instrument of Accession of that State and subject to the limitations contained therein. With the repeal of the Government of India Act, 1935, by the new Constitution, which was accepted by the Rulers of Gwalior, Indore and the Covenanting States as the Constitution for the United State of Madhya Bharat by executing a supplementary Covenant in 1949, the constitutional position of the State has entirely changed.
The distinction which existed under the Government of India Act, 1935, between the Provinces and the Acceded States is gone. Under Article 1 of the Constitution, India is now a compact territory and a Union of States. Leaving aside the case of Kashmir, the States specified in Part B of the First Schedule of the Constitution are on a par with the States mentioned in Part A of the Schedule, with this difference that they are subject to the supervisory powers of the Centre for the transitional period of ten years under Article 371 and the provisions of Part VI of the Constitution apply to them with the modifications and omissions mentioned in Article 238. The legislative competence of Parliament in relation to Part B States is as varied and wide as it is in the case of Part A States. The extent of the power of Parliament to legislate is defined in Chapter I of Part XI of the Constitution. I had occasion to consider in the case of Shanta Devi v. Custodian of Evacuee Property, Madhya Bharat Government, Civil Miscellaneous Petition No. 237 of 1951, the question whether the Parliament had power to legislate retrospectively for Part B States with respect to a matter excluded from the legislative competence of the Dominion Legislature by virtue of an Instrument of Accession executed under Section 6 of the Government of India Act, 1935. I also considered the question whether Parliament could under the Constitution give to its laws retrospective operation.
I then observed that Parliament had the power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the Union List and the Concurrent List and that this power to legislate within the appointed limits was absolute and supreme, and further that the Constitution did not restrict or limit the legislative competence of Parliament so as to make it exercisable only with regard to that part of the territory of India or with regard to those subjects in respect of which the Dominion Legislature had before 26th January, 1950, the power to legislate and that it was to the provisions of the present Constitution that we must look for determining the power of parliament.
I also made the observations :-
'Now the principle that the Parliament and the State Legislatures are within the statutory limits assigned to them bodies possessing plenary powers is so well-settled as to be free from doubt. From this principle of the supremacy of the Parliament and any State Legislature within their allotted spheres, it follows, that in the absence of express provision to the contrary, the parliament and any state Legislature can give to their laws otherwise valid, retrospective or prospective operation. There is in our Constitution a limitation on the power of the Legislatures to make retroactive criminal legislation. These limitations are stated in Article 20. But except for this Article, there is no other provision in the constitution which points to any limitation on the plenary powers of the Parliament and the State Legislatures so long as they keep within the ambit of the subjects of the legislation specifically assigned to them.
There is nothing in Articles 245, 246 and 248 to indicate an intention to withhold from the Parliament the same absolute discretion as the British Parliament has with regard to past events as well as present and future, provided of course Parliament confines itself to the specified subjects and legislates within the limitations prescribed by Article 20. It would indeed be a violent straining of the wide words of the power to make laws conferred by Articles 245, 246, and 248 if we were to read into them a prohibition of retrospective laws. To do so would be to add to the Constitution, without express words, the prohibition of retrospective laws over the above the limits set out in Article 20'
In that case I expressed my dissent from the view taken by the Rajasthan High Court in Kabras case that as the authority of the Dominion Legislature under the Government of India Act, 1935, in the matter of legislation for the purpose of imposition of income-tax was excluded in Rajasthan before 26th January, 1950, and as the Government of India Act, 1935, had been repealed by Article 395 of the Constitution, therefore, by virtue of Article 367 and Section 6 of the General Clause Act, the previous operation of Section 101 of Government of India Act, 1935, could not be affected by subsequent legislation. While expressing my dissent from this view, I said :-
'I find it difficult to see how Section 6 of the General Clause Act could be invoked in such cases for holding that the effect of the repeal of the Government of India Act, 1935, is to confirm for ever the rights vested in the citizens just before the commencement of the Constitution and deny to the Parliament and the State Legislature the power of interfering with those rights by enacting retrospective Legislation under the powers conferred on them by Articles 245 and 246 of the Constitution. It appears to me that Section 6 of the General Clauses Act, which merely lays down one of the general rules of construction of statutes, can have no applicability where the Governments of India Act, 1935, is not merely repealed but is substituted by a new Constitution under which the Parliament and the State Legislatures are not prohibited from legislating for the past and of interfering with vested rights. Section 6 of the General Clause Act would have again no applicability where the Parliament and the State Legislatures with the legislative competence of retrospective legislation pass an enactment giving it in express terms retrospective effect.'
It is true that I made these observations in a case in which the question was of the validity of the Administration of the Evacuee Property Act, 1950, in its applicability to this State and I took care to mention that in making those observations I should not be taken as deciding in any way the point as to the validity of the imposition of income-tax in circumstances such as those present in the Rajasthan case. But nothing which the learned Counsel for the petitioners said before us persuades me to revise the opinion I expressed in Shanta Devis case, Civil Miscellaneous Petition No. 237 of 1951 (M.B.). It must be said that the learned Counsel for the applicants did not go to the length of saying that Parliament had no power under the Constitution to legislate retrospectively. He, however, strongly relied on Article 371 of the Constitution to show that the limitations imposed on the powers of the Dominion Legislature under the Government of India Act, 1935, to legislate for the Indian States, are also operative in relation to the Parliament under the new Constitution. This contention seems to me untenable.
Article 372 does not save the Covenant which, as I have said before, is not a statute and which did not itself impose any restrictions on the powers of the Dominion Legislature. Nor does the Article preserve Section 6 and 101 of the repealed Government of India Act, 1935, which permitted restrictions being put on the powers of the Dominion Legislature by Instruments of Accession. This article is analogus to Section 292 of the Government of India Act, 1935, and as observed by the Federal Court in United Provinces v. Mt. Atiqua Begum 'a provision like Section 292 is usually inserted in similar Acts to indicated that the repeal of the parent Act shall not be deemed to have repealed all the laws passed under that Act,' and that the provision did not mean that no later Act of the Legislature can by words of retrospective operation antedate its effect so as to affect rights acquired under a previous law down to the date of the new legislation. There is, therefore, no justification for reading Article 372(1) as laying down any limitation upon the power of the Parliament to amend the Indian Income-tax Act and make it applicable to Part B States so as to tax income accruing in States prior to 26th January, 1950, and the petitioners contention to that effect must be rejected.
It was next urged that the notice served on the petitioners under Section 22 (2) of the Act was not valid. The objection is that the notice which was issued on 22nd November, 1950, was addressed to Sir Hukumchand as an individual and not as a member of a Hindu undivided family and that, therefore, the assessment made on the income of the Hindu undivided family is not valid. There is no substance in this objection. In the notice issued to Sir Hukumchand (Exhibit 22) by which he was required to submit a return, the various capacities in which a return has to be filed were indicated one of these capacities having been scored out. The contention of the assessee seems to be that he did not know exactly as to in which capacity of his, he was required to submit a return and, therefore, the notice was illegal. I do not think that the assessee was left in doubt as to what he had to do in the matter of submitting a return. After the receipt of the notice, Sir Hukumchand addressed a letter to the Income-tax Officer, Indore, saying that he was a member of Hindu undivided family and that as he had no separate source of income of his own, he could not be taxed. In reply to that letter the Income-tax Officer informed Sir Hukumchand on 6th January, 1951, that the return of income which was required from him was of his Hindu undivided family and not in his capacity as an individual. It is thus clear that Sir Hukumchand knew that he had to furnish a return of income of his Hindu undivided family and as a matter of fact Sir Hukumchand did submit a return of 18th February, 1952, making it clear in the return that it was of his Hindu undivided family.
A notice issued to any adult member of a Hindu undivided family for submitting a return of the income of the family is a valid notice. When such a notice was issued in the present case and on that notice a return of the undivided family was filed, the petitioners cannot legitimately be allowed to raise the question of the validity of the notice under Section 22(2). Again, as has been held by the Federal Court in Chattu Ram v. Income-tax Commissioner, Bihar, the jurisdiction of the Income-tax Officer to assess and the liability of the assessee to pay the tax are not conditional on the validity of the notice. Their Lordship observed in this case that
'the Income-tax assessment proceedings commence with the issue of a notice. The issue or receipt of a notice is no, however, the foundation of jurisdiction of the Income-tax Officer to make the assessment or of a liability of the assessee to pay the tax. It may be urged that the issue and service of a notice under Section 22 (1) or (2) may affect the liability to pay the tax, however, are not conditional on the validity of the notice.'
These observations fully apply to the present case and on their basis, the contention of the petitioner as to the assessment being without jurisdiction because of an invalid notice, cannot be accepted.
The last contention of the petitioners is that they raised before the Income-tax Officer, Indore, an objection as to the place of assessment and that the Income-tax Officer was not justified in making the assessment without following the procedure laid down in Section 64(3). On this point the submission of the learned Counsel for the petitioner was that when the petitioners filed the return marked as 'under protest' and that when in his letter dated 19th December, 1950, addressed to the Income-tax Officer, Indore, Sir Hukumchand distinctly stated that he was not liable to tax under the Income-tax Act in respect of the income which accrued to him in Madhya Bharat before 1st April, 1950, it meant that an objection as to the jurisdiction of the Income-tax Officer, Indore, to assess them was taken. According to the learned Counsel, in other words, it meant that the petitioners raised before the Income-tax Officer, Indore, an objection as to the place of assessment. Mr. Chitales argument in answer to this was that inasmuch as the petitioners say that the notice given to them to furnish a return under Section 22(2) was not a valid notice, it must be taken that the return submitted by them was in response to the notice under sub-section (1) of Section 22 and that as in this return the petitioners had stated Indore as the principal place of their business, they were precluded under the second proviso to sub-section (3) of section 64 from raising an objection as to the place of assessment.
It was further said by the learned Counsel for the Union of India that the procedure laid down in Section 64(3) applies only when an objection as to the place of assessment is specifically raised by the assessee; that the petitioners did not raise the objection before the Income-tax Officer, Indore; and that the filing of a return 'under protest' or making a statement denying the liability to tax is not tantamount to taking an objection as to the place of assessment. He also urged that the petitioners had themselves stated in the return of income filed by them that their principal place of business was Indore and that their Hindu undivided family resided in Indore and that when these statements were accepted by the Income-tax Officer, it could not be said that there was any dispute between the petitioners and the Income-tax Officer, Indore, as to the place of assessment requiring the Income-tax Officer, Indore, to follow the procedure indicated in Section 64(3). The learned Counsel for the Union of India also drew our attention to the case of Wallace Brothers & Co. Ltd. v. Commissioner of Income-tax, Bombay, Sind and Baluchistan in which it was observed that the question as to the place of assessment under Section 64(3) was more one of administrative convenience than of jurisdiction and that in any event it was not one for adjudication by the Court.
In my view, this contention urged on behalf of the petitioners is without any force. Section 64 of the Act provides that where an assessee carries on business at any place he shall be assessed by the Income-tax Officer of the area in which that place is situated, and where the business is carried on in more place than one, then by the Income-tax Officer of the area in which the principal place of business is situated. In all other cases, an assessee is assessed by the Income-tax Officer of the area in which he resides. Under sub-section (3) of Section 64 if any question arises as to the place of assessment then the question is to determined by the Commissioner or by the Central Board or Revenue. The Income-tax Officer is also required under this sub-section to refer the matter as to the place of assessment for determination if the place of assessment is called in question by the assessee. Section 64(3) also says that the place of assessment shall not be called in question by an assessee who has made a return in response to the notice under sub-section (1) of Section 22 and has stated therein the principal place of his business, or if he has not made such a return, it shall not be called in question after the expiry of time allowed by the notice under Section 22(2) or Section 34 for making a return.
It is clear from these provisions that an objection as to the place of assessment must be specific and that sub-section (3) becomes operative only when a question as to the place of assessment arises. If, therefore, the statements made by an assessee in his return about the principal place of business or residence in any area are accepted by the Income-tax Officer, it cannot be said that there is for determination a question as to the place of assessment. In the present case, it is obvious from the notice (Ex. 22) on record that the notice issued to the petitioners was under Section 22(2). The fact that the notice issued and served on the petitioners was under Section 22(2) was admitted by the Income-tax Officer in his letter dated 4th January, 1952, which he addressed to Sir Hukumchand reminding him of the notice. In face of these facts, the opponents cannot now be permitted to say that the return filed by the petitioners was in response to the general notice issued under Section 22(1). The fact that the petitioners say here that the said notice was not valid, does not, in my opinion, alter the legal position that the return submitted by them under that notice, which I have held to be a valid notice, was a return in response to a notice under Section 22(2). The return was, no doubt, marked as 'under protest' But this only means that the return was not voluntary one. It does not mean that the petitioners raised an objection as to the place of assessment.
An assessee may be unwilling to furnish a return for a variety of reasons. He may deny liability to taxation on any income and may be thus unwilling to submit a return and yet at the same time may accept the position that a particular Income-tax Officer has jurisdiction to assess income-tax if the liability exists. The words 'under protest' by themselves do not give any indication as to the precise reason or reasons for the unwillingness of the assessee to furnish a return. Again, I fail to see how the statement in the letter addressed by Sir Hukumchand on 19th December, 1950, to the effect that the income which accrued to him in Madhya Bharat in the year 1949-50 could not be taxed under the Indian Income-tax Act and that, therefore, he was not liable to any tax can be read as even suggesting remotely that the petitioners objected to the place of assessment. It is one thing to deny liability and quite different to say that a particular officer has no jurisdiction to assess. It is important to note that 'the place of assessment' has no reference at all to the liability of an income accruing in any period or in any area, to tax, under the Act or to the competency of the Income-tax Officer in the sense of his general authority to assess. The petitioners, no doubt, denied that they were assessable by reference to the income which accrued to them in Madhya Bharat in the year in question. But at no time did they call in question the place of assessment before the Income-tax Officer, Indore. The petitioners themselves stated in the return 'Indore' as the principal place of their business, and residence of the Hindu undivided family. This statement was accepted by the Income-tax Officer, Indore. There was, therefore, no issue between the petitioners and the Income-tax Officer as to the place of assessment.
Learned Counsel for the applicants said that the petitioners were not bound by the statement in the return as it having been filed under protest, must be regarded as non-existent. I am unable to accept this effect of the expression 'under protest'. A return marked as 'under protest' only safeguards the position of the assessee and ensures that it may not be said that the return made was a voluntary one. As the petitioners did not raise any objection as to the place of assessment before the Income-tax Officer, Indore, they cannot now be allowed to say that the Income-tax should have followed the procedure laid down in Section 64(3). The matter seems to me to be concluded by the decision of the Federal Court in Wallace Brothers and Co. Ltd. v. Income-tax Commissioner, Bombay . In that case also, a return was filed by the assessee 'under protest' and without in any way admitting any liability to tax on the world income and an objection was raised for the first time before the Appellate Tribunal as to the place of assessment. The Federal Court held that an objection as to the place of assessment must be taken and determined before the assessment is allowed to go on; it cannot be allowed to be raised on an appeal against the assessment after the assessment had been made. It was also observed in that case that the question as to the place of jurisdiction. Following these observations, the contention of the petitioners that the assessment is bad as the Income-tax Officer did not follow the procedure laid down in Section 64(3) must be repelled.
During the course of his arguments on the objection as to the place of assessment, learned Counsel for the petitioners repeatedly stressed the fact that for several years the petitioners were being assessed by the Income-tax Officer, Bombay, and that they had in fact filed returns in Bombay for the assessment years 1948-49, 1949-50 and 1950-51. In my view, this fact has no bearing in the present case. In the affidavit filed by the petitioners during the hearing of this petition, it has been admitted by them that the returns of the Hindu undivided family of Sir Hukumchand for the assessment years 1949-50 and 1950-51 have not been filed before the Income-tax Officer, Bombay. Again, as the petitioners principal place of business is Indore and the family resides in Indore, the jurisdiction of the Income-tax Officer, Indore, to assess the petitioners is not excluded by the fact that the Income-tax Officer, Bombay, has commenced proceedings in respect of the income accruing and received by the petitioners within his area.
Having regard to the view I have taken of the various contentions urged on behalf of the petitioners, it is unnecessary to deal with the point raised by Mr. Chitale that this Court should not interfere under Article 226 as the petitioners could have availed themselves of the adequate remedy provided by the Income-tax Act itself by way of an appeal under Section 30 or a revision under Section 33A of the Act. But I ought to notice the argument of the learned Counsel as regards the remedy of an appeal under Section 30. It is conceded that under Section 23B, there is no right of appeal against a provisional assessment. It is however, said that sub-section (1) of Section 30 gives the right of appeal inter alia to any assessee 'denying his liability to assess under the Act.' I do not accede to this contention. The short answer to this is that under Section 30(1), an appeal lies against any assessment made under any of the sub-sections of Section 23 and against certain orders of the Income-tax Officer which are expressly specified in Section 30(1). No appeal lies before any assessment is made. An assessee who denies his liability to be assessed is entitled to appeal on that ground only after the assessment is made.
For all these reasons, I am inclined to think that the assessment order and the notice of demand dated 19th February, 1952, are valid and the petition under Article 226 for the issue of a writ or an order for quashing the assessment and the notice of demand must be refused.
There remains for consideration the application of the petitioners challenging the validity of the order dated 29th February, 1950, of the Income-tax Officer, imposing the penalty of Rs. 25,000 on the petitioners for their failure to pay the amount of tax within the fixed time, and questioning the bona fides of the Income-tax Officer in making that order. I have already mentioned in the beginning that the petition under Article 226 was filed on 28th February, 1952, and that on the next day this Court passed an order restraining the Income-tax Officer from taking any action to enforce the provisional assessment order and notice of demand of the tax. This order was served on the Income-tax Officer on 3rd March, 1952. But in the meantime on 29th February, 1952, itself, the Income-tax Officer passed on order imposing the penalty of Rs. 25,000. The petitioners state that after the filing of the application in this Court, their Counsel Mr. Samvatsar addressed a letter on 28th February, 1952, to the Income-tax Officer informing him of the presentation of the petition and of the fact that the petitioners had therein prayed to the Court for an interim order for restraining him from enforcing the assessment order, and that the petition was likely to be heard on 29th February, 1952, and requesting the Income-tax Officer to stay further action in the matter till the hearing of the petition by this Court. The petitioners further allege that on 29th February, 1952, when they obtained from this Court an interim order, their Secretary one Mr. Koria and their Income-tax Adviser one Mr. Shroff immediately went to the officer of the Income-tax Officer to inform him of the order passed by this Court; but the Income-tax Officer did not grant them any interview.
It is further stated that on 1st March, 1942, the office of the opponent No. 2 refused to accept service of the order of injunction passed by this Court and also refused to accept a letter addressed by the petitioners Secretary to the Income-tax Officer informing him of the fact of the issue of the prohibitory order by this Court. The explanation which the Income-tax Officer has offered is that he did not take any notice of the letter addressed by Mr. Samvatsar as he had not filed any letter of authority for his appearance before him on behalf of the petitioner; that he did not evade granting an interview to the petitioners representative Messrs. Koria and Shroff; that the 1st day of March, 1952, being a Saturday, his office was closed to public business at 1-30 p.m. and it was not bound to accept any letter from the public after that time. While admitting that an order from this Court could be delivered to him 'wherever he was found even after the close of the office,' the Income-tax Officer denies that such an order was presented to him before 3rd March, 1952. It is also admitted that the order imposing penalty was passed on 29th February, 1952. But it is said by the Income-tax Officer that he had no knowledge of any proceedings before this Court.
On these facts, Mr. Kolah, the learned Counsel for the petitioners argued with warmth and vehemence that the order imposing penalty having been passed after the issue of the prohibitory order by this Court, was without jurisdiction and illegal and that in making that order the Income-tax Officer intended to forestall this Court. Mr. Chitale rightly did not support the order imposing penalty. But he sought to assure us that at the time of making that order the Income-tax Officer had no knowledge of the order made by this Court, and he had no intention of defying any order of this Court.
As is clear from the order imposing penalty, it was passed by the Income-tax Officer at the close of the day after this Court had issued earlier in the day the order of injunction. The order of the Income-tax Officer imposing penalty is thus clearly without jurisdiction and illegal. I must, however, say that the warmth and vehemence with which the learned Counsel for the petitioners urged that the Income-tax Officer desired to forestall this Court is, perhaps, justified in the circumstances stated above. That an Income-tax officer may exercise his powers under the Act and impose a penalty thereunder cannot be in doubt and this Court does not wish to prevent his doing so without anticipating any prohibitory order from this Court in any matter pending before him. But I feel nothing would have been lost in this case if the Income-tax Officer had shown the same care and vigilance in ascertaining the result of the hearing of the petition by this Court on 29th February, 1952, as he exhibited in ascertaining at the close of the day on 29th February, 1952, from the treasury that the petitioners had not paid the tax into the treasury till then and in imposing the penalty. It cannot be gainsaid that the Income-tax Officer was aware of the proceedings in this Court as he had been in fact so informed on 28th February, 1952, by the petitioners Counsel Mr. Samvatsar.
I appreciate the statement of the Income-tax Officer that on order of this Court could be delivered to him at any hour and at any time. I would only point out that if the Income-tax Officer had made adequate arrangements for this being done, he would not have placed himself in a situation such as this. As it is, it appears from the report of the process-server that on 1st March, 1952, when he went to the Income-tax Officer to serve the order of injunction on the Income-tax Officer, a clerk in the Office refused to accept service and informed him that the Income-tax Officer was not in the office; and that when thereupon, the process-server inquired about the residence of the Income-tax Officer, he was not given the necessary information to enable him to go to the residence of the Income-tax Officer for effecting service of the order. I hope that this state of things is remedied soon by the Income-tax Officer.
In the result the order dated 29th February, 1952, of the Income-tax Officer imposing the penalty of Rs. 25,000 is declared illegal and without jurisdiction and is set aside. The petitioners application under Article 226 of the Constitution to quash the provisional assessment and the notice of demand dated 19th February, 1952, is dismissed. In the circumstances of the case, I would leave the parties to bear their own costs.
SHINDE, C.J. - I agree.
MEHTA, J. - I agree.
Ordered accordingly.