TMI Blog1969 (9) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... ition as also the replies therefore in the affidavits-in-opposition would be material for the purpose of considering one of the contentions raised by learned counsel for the department, it would be necessary to set out the facts in some detail. The petitioner had income from dividends and in respect of the assessment year prior to the year 1956-57, the petitioner used to file her returns with the Income-tax Officer, Refund Circle, Calcutta, in order to claim refund of excess tax deducted at source and her general index register number in that circle was No. RC/ II(I)/235-J. For the assessment year 1956-57, for which the corresponding accounting year was 2013 S.Y., the petitioner filed her return before the said Income-tax Officer, Refund Circle, the second respondent herein, on the 29th March, 1961, i.e., only two days before the time to file a return expired. Apparently, no order was passed on this return by the second respondent. A notice purported to be under section 148 of the Income-tax Act, 1961, dated the 6th June, 1963, requiring the petitioner to submit her return for the assessment year 1956-57, as the Income-tax Officer was of the opinion that her income for that year ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition affirmed by Patri Seshadri Rao, the respondent No. 1 in this application, none of the allegations made in the petition are denied. It is contended that as the Income-tax Officer, Refund Circle, has jurisdiction only over cases which result in refund, the return filed by the petitioner for the assessment year 1956-57 before that officer was invalid as in that year the petitioner was liable to be assessed on a substantial income. The officer having jurisdiction over the petitioner was the Income-tax Officer, District II(2), within whose territorial jurisdiction the petitioner resided at the material time and a return should have been filed before that officer. It is submitted that as no valid return had been filed for 1956-57, the respondent No. 1 had rightly issued the impugned notice under section 148. So far as the intermittent transfers of the petitioner's file from one Income-tax Officer to another is concerned the only comment made in the affidavit is that where the file is transferred from one Income-tax Officer to another situated in the same city it is not necessary to give any notice to the assessee and it is further submitted that when the petitioner demanded to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity of the department dealing with any return filed immediately before the limitation for the assessment for that year expired. It was in fact contended that if such a return was filed on the last date the department would be driven to complete the assessment proceedings within a few hours or lose the right to send a notice under section 34(1). The Supreme Court observed that an argument an inconvenient was not a decisive argument. The Income-tax Officer could have avoided the result by issuing a notice under section 23(2) and not remaining inactive until the period was about to expire. Further all laws of limitation lead to some inconvenience and hard cases. In the second decision the court more or less reiterated what had been said in Ranchhoddas's case. Dr. Pal accordingly submitted that the action of the respondent No. 1 in issuing a notice under section 148 for the assessment year 1956-57, ignoring the return that the petitioner had already filed for that year, was without jurisdiction and void. Mr. D. Gupta, the learned counsel for the department, made two submissions for his contention that this application should be rejected. He pointed out that for the assessment year 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner and if he was of the opinion that the assessment should properly be made by another officer there was nothing to prevent him from transferring the file to that particular officer. Further, in my opinion, Mr. Gupta has overlooked the fact that the general index number of the petitioner's file was with the Income-tax Officer, Refund Circle, and a return filed must mention such index number and must be filed with the Income-tax Officer with whom such number is recorded. The petitioner in this case filed the return before the Income-tax Officer, Refund Circle, and it cannot be said that the return so filed was invalid or inoperative. In any event on the day of filing the said return the petitioner's file had not been transferred from the Income-tax Officer, Refund Circle. The second and the more substantial contention raised by Mr. Gupta is that as in this case the impugned notice under section 148 was served on the petitioner on the 6th June, 1963, and the present application was made on the 5th September, 1967, the inordinate delay of four years would disentitle the petitioner from claiming any relief under a high prerogative writ. While the issue of a writ is always at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its mind but kept on transferring the petitioner's assessment file, from one Income-tax Officer to another, starting with the transfer to the respondent No. 1 in July, 1961, and ending with the transfer of the file back to the same officer on or about August, 1966. The petitioner has been systematically challenging the validity of the impugned notice before each successive Income-tax Officer to whom the file was transferred and it was only on the 5th August, 1967, when she was threatened with penalty proceedings for non-filing of her return that she demanded justice and came to this court for relief. I do not think there has been any delay on the part of the petitioner to seek the protection of this court in its writ jurisdiction. Further there is a great deal of substance in Dr. Pal's submission that the observations of the Supreme Court in State of Madhya Pradesh v. Bhailal Bhai are limited to a writ of mandamus which is a writ commanding an authority to do or abstain from doing certain things. But where writs of certiorari or prohibition are concerned a challenge to the exercise of a jurisdiction not vested or against action in excess of such jurisdiction or for error apparen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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