TMI Blog1974 (5) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction by the respondent No. 1 under section 34 of the Act has not been satisfied. Mr. Deb, learned advocate for the petitioner, has submitted that in the instant case, there is no material to establish that the Central Board of Revenue was satisfied that this was a fit case for issue of notices under section 34 of the Act. In this connection, Mr. Deb, learned advocate for the petitioner, referred to the provisions of the Central Board of Revenue Act, 1924, and to the Central Board of Revenue Regulation and Transaction of Business Rules, 1936, and contended that the affidavits filed on behalf of the respondents do not show that the Board had made and come to a decision to grant sanction in this case. There was no authenticated copy of the order of the Board before the court. The records of the Board have not been produced. Therefore, there was no evidence, according to Mr. Deb, that the Board was satisfied as contemplated under section 34(1)(a) of the Act. On, the 15th July, 1971, the respondents filed an affidavit-in-opposition affirmed by Haripada Roy, the Income-tax Officer, Special Investigation Branch, West Bengal-II, who was the Income-tax Officer, " D " Ward, Howrah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of justice the parties should be given opportunity to file further affidavits. On the 27th February, 1974, the respondent filed a supplementary affidavit affirmed by Haripada Roy who was the Income-tax Officer " D " Ward, Howrah, at the relevant time. In paragraph 2 of the said affidavit-in-opposition, the deponent stated that when he was the assessing Income-tax Officer in respect of the assessee he was satisfied and as such he had duly obtained necessary sanction from the Central Board of Revenue. The reasons recorded by him were made annexure " A " to the supplementary affidavit-in-opposition. The then Income-tax Officer, " D " Ward, by his letter dated, the 23rd March, 1962, addressed to the Secretary, Central Board of Revenue, New Delhi, stated the reasons for his belief that the assessee did not disclose fully and truly all material facts for his assessment for the years 1940-41 to 1952-53. He also stated that the amounts of income of such under-assessment could exceed Rs. one lakh. He accordingly proposed to take action under section 34(1)(a) for all the years. By the said letter, the Income-tax Officer, therefore, requested: " Hence approval for starting proceedings unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ragraph 3 of the said supplementary affidavit further stated that the Board had communicated by a telegram to the Commissioner of Income-tax, West Bengal, on March 27, 1962, their sanction followed by a letter. Reference was also made to File No. 6A/470/61-62 (PG) in support of the respondents' case that the Board had granted sanction. The deponent also prayed that the respondents be allowed to produce the original records and to adduce secondary evidence regarding granting of the said sanction. The petitioner in his supplementary affidavit-in-reply disputed the assertions contained in the aforesaid supplementary affidavit, dated the 8th May, 1974, and contended that the materials produced by the respondents to establish that the original records of the Board had been destroyed should not be accepted. The petitioner also disputed the right of the respondents to adduce other evidence to prove that the Board had accorded sanction to the initiation of the impugned proceeding. The short point in this rule is whether the Central Board of Revenue had granted sanction to the initiation of the impugned proceedings under section 34. In my opinion, the petitioner in this rule is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the petitioner had withdrawn the two previous applications in view of the fact that sufficient materials and grounds were not stated in the said two applications. In my view, even assuming the said reasons prompted the petitioner not to press the two earlier rules the same did not amount to a " formal defect " within the meaning of sub-rule (2)(a) of rule 1 of Order 23 of the Code. " Other sufficient grounds " in sub-rule (2)(b) of rule 1 of Order 23 must be of the same nature as the grounds specified in clause (a) [see Khardah Co. Ltd. v. Durga Charan [1910] 11 CLJ 45 (Cal)]. It is well settled that the plaintiff cannot be permitted to withdraw from a suit after he has adduced all his evidence and then finds that the evidence is insufficient to establish his case. I may further point out that B. C. Mitra J. did not expressly grant leave to the petitioner to withdraw the writ applications in previous C.R. 30(W) and 31(W) of 1963, but he had discharged the said rules. Therefore, strictly speaking, the aforesaid case was not covered by Order 23, rule 1. Again, although the petitioner had taken a ground in two previous writ petitions regarding sanction of the Board (vide paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitute two separate Boards of Revenue to be called as Central Board of Direct Taxes and Central Board of Excise and Customs ". Section 2 of the Central Boards of Revenue Act, 1963, further provides for repeal of the Central Board of Revenue Act, 1924, and saving. Under sub-section (2) of section 8 approval or the order made by the Central Board of Revenue, etc., shall be deemed to have been made, granted and issued by the Central Board of Direct Taxes or as the case may be by the Central Board of Excise and Customs. The said approval, orders, etc., were to continue in force until and unless revised, withdrawn or superseded. The petitioner did not make the Central Board of Revenue a respondent in the previous rules. He also did not make the Central Board of Direct Taxes respondent either in the previous rules or in the present rule. In my view, the Central Board of Direct Taxes who must be deemed to have made the approval order in view of sub-section (2) of section 8 of the Central Boards of Revenue Act, 1963, was a necessary party in the present rule. The petitioner did not choose to apply for making the said Central Board of Direct Taxes as a respondent. In case this rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board of Revenue." The Secretary of the Board under rule 6 of the Central Board of Revenue (Regulation of Transaction of Business) Rules, 1956, was authorised to authenticate orders or decisions made or taken by the Board of Revenue. The Form C upon which the Secretary endorsed that the Board had granted approval itself was an evidence that the Board had accorded approval. The petitioner did not specifically assert in the writ petition that in the instant case, the business of the Board was not transacted by the chairman and other members. He merely took a general ground in paragraph 18(j) that the approval of the Board was not given in accordance with law, but the said ground was lacking in particulars. Having regard to the entire official records including the proposals by the Income-tax Officer, forwarding of the same by the Commissioner of Income-tax, the original Form " C " containing endorsement by the Secretary that the Board had approved, clearly established that the provisions of section 34(1)(a) were fully complied with. In my view, in the instant case, the court should draw a presumption that all official acts relating to the granting of approval by the Central Boa ..... 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