TMI Blog1939 (12) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... tax Act directing him to make a return to the Income-tax Officer appointed by the Commissioner of Income-tax for Bombay Presidency, Sind and Baluchistan, that is to say, the Local Commissioner of Income-tax, and in respect of that year an assessment was made. In the year 1938-39 the assessee received a notice to make a return, but no assessment has actually been made, nor has assessment been made, for the year 1939-40 to which the amended Income-tax Act applies. In respect of the year 1937-38 the assessee has been served with a notice under section 34 alleging that certain income had escaped assessment. It is not, I think, necessary to deal with the vicissitudes affecting the proceedings before the 1st of April 1939, when the amended Income-tax Act came into operation. Under that Act, the relevant provisions of which I will refer to in a moment, a Commissioner of Income- tax, Central, was appointed, and the case of the assessee in respect of the three years in question was assigned to him by the Central Board of Revenue. That Commissioner, Mr. Bird, subsequently passed orders which are exhibited to his affidavit, the relevant exhibits being Exs. 8 to 12 inclusive. By the order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present case it is to be noticed that a Commissioner has been appointed for the Presidency of Bombay, Sind and Baluchistan, Then under sub-section (4) it is provided that the Central Government may appoint for any area as many Assistant Commissioners of Income-tax and Income-tax Officers as it thinks fit. They shall perform their functions in respect of such persons or classes of persons and of such incomes or classes of income and in respect of such areas as the Commissioner of Income-tax may direct and, where two or more Assistant Commissioners of Income-tax or Income-tax Officers have been appointed for the same area, in accordance with any orders which the Commissioner of Income-tax may make for the distribution and allocation of the work to be performed. So that the effect of those provisions appears to be that the Central Government appoints a Commissioner and Income-tax Officers (we are not concerned with Assistant Commissioners in this case) and the Central Government appoints them for any area it may think fit. Then the Commissioner can specify the functions to be performed by any Income-tax Officer in respect of certain incomes or classes of incomes and in respect of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me- tax, not more than three in all, each to discharge, without reference to area, and to the exclusion of any Commissioner appointed for any area, the functions of a Commissioner in respect of any cases or classes of cases assigned to him by the Central Board of Revenue. Then undersub-section (7) it is provided that: Assistant Commissioners of Income-tax and Income-tax Officers shall, for the purposes of this Act, be subordinate to the Commissioner of Income-tax for the area in which they perform their functions, or where they perform functions assigned to them by a Commissioner of Income- tax appointed without reference to area, to that Commissioner'. So that under the new Act you may have two Commissioners functioning in the same place,-(1) the Local Commissioner and (2) the Commissioner (Central), appointed without reference to area, to whom specific cases have been assigned. As I have mentioned, the Central Government in April 1939 appointed Mr. Bird to be the Commis- sioner of Income-tax (Central), without reference to area, and in due course assigned to him the case of the present applicant and it was under authority so derived from the Government of India that Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istan, it would be difficult to hold as too wide an area comprising the whole of British India, or indeed the whole of Asia or the whole world. In my opinion, Section 64 was intended to ensure that as far as practicable an assessee should be assessed locally, and the area to which an Income-tax Officer is appointed must, so far as the exigencies of tax collection allow, bear some reasonable relation to the place where the assessee carries on business or resides. There is no evidence that there was any difficulty in restricting the area to which the Income-tax Officer, Section II (Central), was appointed to something much narrower than the Bombay Presidency, Sind and Baluchistan. Therefore, in my opinion, the Income-tax Officer, Section II (Central), is not the Income-tax Officer of the area in which the applicant's place of business is situate, and as there is such an Officer in existence, namely, the Officer of Ward C, Section II, in my opinion, it is only the latter Officer who can assess the assessee. He second point argued was that if the Income-tax Officer, Section II (Central), can assess the assessee in respect of the year 1939-40, at any rate he cannot assess him in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;original jurisdiction in any matter concerning the revenue,' and the latter part of the clause need not be considered, for the proceedings in this case had not to do with the collection of the revenue, but with the preliminary assessment to ascertain what that revenue was. It seems to me that passage really covers this case. If an order directing a revenue officer to do his statutory duty does not fall within the prohibition of the section, an order directing him to forbear from doing something, which he believes wrongly to be his statutory duty, cannot fall within the section. Relying,therefore, on that decision, I think we have jurisdiction to entertain the matter notwithstanding Section 226 of the Government of India Act. The other preliminary objection arises under Section 45 of the Specific Relief Act, under which the application is made. In order to confer jurisdiction we must be satisfied, amongst other things, that the application is made by some person whose property, franchise or personal right would be injured by the forbearing or doing(as the case may be) of the specific act, and further that the applicant has no other specific and adequate legal remedy. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 64 is controlled by Section 5 so as to be read with a proviso that Section 64 is applicable, except to cases which are transferred to the Commissioner, Central, or the Officers appointed by the Commissioner, Central, under him. In my opinion Section 64 is not so controlled. The two sections can stand together without encroaching on each other and that natural construction should be adopted. The words of Section 64, Income-tax Act, clearly provide that the assessee shall be assessed by the Income-tax Officer of the area in which his place of business or residence is situate. On a perusal of Section 5 it is clear that the term area has different meanings as used in the different sub-sections of Section 5 itself. We are not concerned here with a case where there is no officer who will answer the description mentioned in Section 64 nor am I prepared to define what the term area as used in Section 64 exactly means or excludes. Proceeding on the footing that in the present case an Income-tax Officer of the area in which the applicant's place of business is situate exists and existed before 1st April 1939 the question is whether the officer appointed by Mr. Bird, and descri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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