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TMI Blog1967 (3) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... " Whether, on the facts and in the circumstances of the case, the appeal before the Appellate Tribunal was filed by a proper person?" The relevant facts are stated in the statement of the case and are as follows : The respondents, hereinafter referred to as " the assessee ", is a Hindu undivided family and for the assessment year 1947-48 the assessment was made by the Income-tax Officer, District I(2), on February 12, 1952. He held that the income of Rs. 1,41,851 derived from forests in East Pakistan was not agricultural income exempt from tax under the Indian Income-tax Act, 1922. The assessee appealed to the Appellate Assistant Commissioner, who, by his order dated February 7, 1956, held that the said amount of Rs. 1,41,851, represented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appeal. " It will be noticed that in the facts given in the statement of the case and the reasoning of the Appellate Tribunal there is no mention of any order of transfer having been passed by the Commissioner of Income-tax or the Board of Revenue transferring the files from the Income-tax Officer, District I(2), to the Income-tax Officer, District VI, Calcutta. Neither is there any mention which Commissioner of Income-tax directed the Income-tax Officer, District VI, Calcutta, to file the appeal. The learned counsel for the appellants contends that the High Court erred in taking into consideration facts which were not to be found in the statement of the case. He says that in the penultimate paragraph of the judgment, the High Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before us that a direction for filing the appeal was given to the Income-tax Officer, District VI, but no order of transfer under section 5(5) read with section 5(7)(a) could be shown to us, although the original records were brought into court. " The learned counsel urges that the High Court had no jurisdiction to send for records or look into them, and the whole judgment of the High Court is based on new facts stated by it in the penultimate paragraph of its judgment. In our view, the High Court exceeded its jurisdiction under section 66 of the Income-tax Act in finding new facts. If it felt any difficulty in answering the question, it should have called for a supplementary statement of the case. We will, for the purpose of this appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isterial function. But the question still remains whether there is any limitation on the power of the Commissioner to nominate the Income-tax Officer who should file the appeal. One thing seems clear from the expression "the Income-tax Officer" and that is that the Commissioner cannot direct any Income-tax Officer. The expression " the Income-tax Officer " occurs in various sections of the Act. In our view, the expression denotes an Income-tax Officer having jurisdiction over the assessee or the matter. In other words, the officer selected must have some concern with the assessee against whom the appeal is filed by the Commissioner of Income-tax. This was also held by the Calcutta High Court in Commissioner of Income-tax v. Sarkar & Co. Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income-tax Officer, Lahore, for the assessment year 1944-45. The reasoning of the High Court for rejecting the contention of the department was this: " Section 5(7)(a) gives power to the Commissioner to transfer a case from one officer subordinate to him to another and the Central Board of Revenue can transfer a case from one place to any other place in India. Suppose an assessee resides at a particular place and he has been assessed by the Income-tax Officer who has jurisdiction over that area, or is in the process of being assessed. If he changes his residence to another place, then under section 64(2), the Income-tax Officer having jurisdiction over the new place of residence would acquire jurisdiction. But does that mean that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in that case held that there was nothing in section 33(2) to prohibit the Commissioner from directing any Income-tax Officer, other than the one who in fact passed the assessment order, to appeal. We consider that it is not correct to say that any Income-tax Officer can be directed to file an appeal. It must be an Income-tax Officer who has concern with the appeal. The High Court rightly relied on Commissioner of Income-tax v. S. Sarkar & Co. in dissenting from the view expressed by the Punjab High Court in R. B. L. Benarsi Das v. Commissioner of Income-tax, but in our view the High Court erred in holding that the facts of the present case are governed by the earlier decision of the Calcutta High Court. In this case, on the facts found ..... X X X X Extracts X X X X X X X X Extracts X X X X
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