TMI Blog1963 (3) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... his court under article 226 of the Constitution. We strongly deprecate the practice of assessees filing writ petitions against orders of assessments, however illegal or devoid of jurisdiction such orders may be, when the statute provides for an effective remedy by way of an appeal to the Appellate Assistant Commissioner, a further appeal to the Income-tax Appellate Tribunal and a further remedy, if the facts should justify, by way of reference to this court under section 66 of the Indian Income-tax Act. This writ petition need not however be dismissed on that ground as we have reached the conclusion that the order of assessment made by the Income-tax Officer, Madurai, was fully within his competence and power. It is necessary only to state a few facts, which are not in dispute, in order to determine whether the contention of the assessee assailing the jurisdiction of the Income-tax Officer has any substance. The assessee is a native of Okkur in Ramanathapuram District where, it is alleged, he owns a house. He claims to have been doing money-lending business at Okkur. But this, however, has not been substantiated. Admittedly, he is a partner of two firms at Madurai carrying on bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Madurai, dated March 19, 1962, he considered the question of jurisdiction raised by the assessee and held that the objection of the assessee could not be sustained. He has recorded a finding that the assessee is carrying on business only at Madurai and not at Okkur. He seems to be of the opinion, though not expressly stated, that the assessee is a resident of Madurai and not of Okkur. Now, the question for consideration is whether the Madurai officer had no jurisdiction to make an assessment against the petitioner in view of section 64 of the Indian Income-tax Act. Mr. Abdul Karim, learned counsel for the petitioner, has raised the following contentions: 1. The Income-tax Officer, Karaikudi, had no power to transfer the file to the officer at Madurai as the power of transfer is one which is vested exclusively either in the Commissioner of Income-tax or the Central Board of Revenue by the provision of section 5(7A) or section 64 of the Act. 2. The Income-tax Officer, Madurai, had no jurisdiction to deal with the petitioner's assessment as there is no evidence to show that the assessee's principal place of business was at Madurai. 3. The order of assessment pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein he carries on his business, profession or vocation, or if he has not made such a return shall not be called in question after the expiry of the time allowed by the notice under sub-section (2) of section 22 or under section 34 for the making of a return: Provided further that if the place of assessment is called in question by an assessee the Income-tax Officer shall, if not satisfied with the correctness of the claim, refer the matter for determination under this sub-section before assessment is made. The relative scope of section 5(7A) and section 64 is readily discernible from the provisions themselves. Section 5(7A) clothes the Commissioner with the power to transfer an assessee's file from one Income-tax Officer to another, both the officers being subordinate to him. The Central Board of Revenue have power to transfer the file from an officer in one State to an officer in another State. This power of transfer is given by the statute only for purposes of administrative convenience. It is an overriding power, and, though a misuse of such power is subject to correction, either in proceedings under article 226 of the Constitution or otherwise, the power is one whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illegal. But, in order to enable the Commissioner or the Central Board of Revenue to transfer the assessment proceeding from one officer to another which, as stated already, is merely an administrative jurisdiction exercised by the authority, it would be unnecessary to go into the question of the place of residence or business of the assessee. This is because of the power conferred under section 5(7A) which is a general power unfettered by the restrictions in section 64. We do not think that it is necessary to have any regard to the actual order of transmission by the Karaikudi officer to the Madurai officer of the assessment file of the petitioner. Even without an order of such transmission, if the true position is that the Madurai officer alone has got jurisdiction because of the fact that the assessee's principal place of business is Madurai, or that the assessee's only place of business is at Madurai, then the Karaikudi officer would have no jurisdiction at all, and it would be well within the power of the Madurai officer to call upon the assessee to make his return before him or to assess him on the return already filed. The first two contentions raised by Mr. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand taken by the department in the original counteraffidavit filed in the writ petition. After the conclusion of the arguments, a further affidavit has now been filed on behalf of the department stating that there was no order directing transfer from Karaikudi to Madurai, but that the order of the Commissioner dated September 1, 1961, was one by which the file of the assessee was transferred from the Third Income-tax Officer to the Second Income-tax Officer, Madurai. A copy of the order dated September 1, 1961, has also been placed before us. That clearly shows that the petitioner's file was transferred only from one officer to another within Madurai. On the basis of this new material, Mr. Abdul Karim contended that the order of assessment is bad as the officer had relied upon the Commissioner's order dated September 1, 1961, as clothing him with jurisdiction. The Income-tax Officer observes in the assessment order as follows: I would like to mention that the assessee's case has been specifically assigned under section 5(7A) of the Income-tax Act to the 2nd Income-tax Officer, Madurai, by the Commissioner of Income-tax, Madras, under his order dated September 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Calcutta High Court in Tarak Nath Bagchi v. Commissioner of Income-tax [1946] 14 I.T.R. 319. We are unable to see how the ratio of that decision can at all be of any help to him in advancing his contentions in the writ petition before us. The headnote in that case reads: The effect of sub-sections (1) and (4) of section 64 is that, where two or more Income-tax Officers have territorial jurisdiction in respect of the same income, they exercise concurrent jurisdiction in the matter of issuing notices to the assessee and where notices have been issued by one officer it is unnecessary for the other officer to issue the same notices again. Sub- section (3) of section 64 applies only when a question arises as to the place of assessment and when there is no dispute between the assessee and the Income-tax Officer as to the proper place of assessment the point need not be referred to by the Commissioner under that sub-section. It would seem that this decision is more against the contentions urged on behalf of the petitioner rather than in his support. In our opinion, this decision has no bearing on the facts of the present case. In the result, the writ petition fails and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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