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TMI Blog1969 (3) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent be not restrained from realising the amount in question from the petitioner. Respondent No. 1 has shown cause by filing a counter-affidavit and Mr. Ugra Singh has appeared on behalf of the income-tax department to oppose the making of the rule absolute. Mr. Tarkeshwar Prasad has appeared in support of the rule. The petitioner's case, as stated in the writ application, is that, for the assessment year 1945-46, he was assessed to income-tax and demand notice was issued on the 25th March, 1946. Eventually, the Income-tax Appellate Tribunal passed an order in his appeal, arising out of the said assessment proceeding, on the 6th April, 1953, and the order of the Tribunal was received by the petitioner on the 3rd June, 1953. On the 20th March, 1955, ("20-3-53" mentioned in paragraph 4 is admittedly a mistake), a certificate proceeding was started at Calcutta at the instance of the Income-tax Officer, Calcutta, who had made a fresh computation of the tax payable by the petitioner, in pursuance of the appellate order of the Tribunal made on the 6th April, 1953. The fresh computation was made on the 18th September, 1954, and a revised challan, on the basis of the said computation, wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter on, by an order dated the 8th May, 1957, passed by the Commissioner of Income-tax, Patna, the income-tax file of the petitioner was transferred to the Income-tax Officer, Hazaribagh. The said officer directed amendment of the certificate by reducing the recoverable amount in respect of the years 1948-49 to 1950-51, but leaving the certificate proceeding to go on for realization of the two amounts of 1945-46 and the tax demand for the assessment year 1951-52. The petitioner filed his objection under section 9 of the Bihar and Orissa Public Demands Recovery Act, 1914 (B. & O. Act 4 of 1914) before the Certificate Officer, Ranchi, denying his liability on several grounds, only two out of which have been pressed in this court, which will be stated hereinafter. The Certificate Officer rejected the objections of the petitioner by his order dated the 5th December, 1960, a copy of which is annexure "A" to the writ application, The petitioner's appeal to the Deputy Commissioner, Ranchi, was dismissed by him on the 28th February, 1963. A copy of his order is annexure "B". The petitioner preferred a revision before the Commissioner of Chotanagpur at Ranchi. He got his revision application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts mentioned in the judgment of the High Court in the case referred to above. Strictly speaking, the petitioner was not justified in referring to the facts from the decision of the Patna High Court and the consent order made by the Supreme Court in relation thereto, as no reference to them was made by him in his writ application or the affidavit-in-reply, nor does it appear from the order of the Commissioner or the Board that these decisions were referred to before them. Be that as it may, ignoring the technicalities, we have thought it advisable to refer to some facts from the decision of this court as also from the consent order at the persuasion of the petitioner's counsel. In the counter-affidavit of respondent No. 1, it is stated that the fresh computation was made by the Income-tax Officer, Central Circle II, Calcutta, on the basis of the order of the Income-tax Appellate Tribunal, dated the 6th April, 1953, on the 18th September, 1954, and the said officer, by his letter dated the 20th September, 1954, asked the petitioner to deposit the amount by the 15th November, 1954. As the petitioner did not deposit the demand, a certificate under section 46(2) of the Act was issued o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer, Special Circle, Patna, asking the petitioner to file his returns for the assessment years 1948-49 to 1950-51. He had filed the returns also before him. Further steps were taken and were being taken by the Income-tax Officer, Special Circle, Ranchi, and thereafter by the Income-tax Officer, Central Circle II, Calcutta. After the decision of the Supreme Court dated 20th March, 1956, however, and on transfer of the petitioner's file to the Income-tax Officer, Special Circle, Ranchi, the said officer proceeded to assess the petitioner in respect of the three years aforesaid by issuing notices under section 34 of the Act. When his file was again transferred to the Income-tax Officer, Hazaribagh, on the 8th May, 1957, by an order of the Commissioner of Income-tax to be effective from the 15th May, 1957, the Income-tax Officer, Hazaribagh, proceeded to take steps to complete the assessment of the petitioner on the proceeding initiated by the Income-tax Officer, Special Circle, Ranchi, under section 34 of the Act. The petitioner then filed three suits to challenge the proceedings in respect of the three years, namely, 1948-49 to 1950-51 on several grounds, one of which was that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Calcutta by the Central Board of Revenue, it was pending before the Income-tax Officer, Special Circle, Ranchi. The order of the Board was set aside by the Supreme Court. The usual and the natural consequence of it was that the file had to be sent back to the Income-tax Officer, Special Circle, Ranchi, as the order of the Income-tax Officer, dated the 21st April, 1951, transferring the petitioner's file to Ranchi was never challenged before the Supreme Court, when the order of the Central Board of Revenue transferring his file from Ranchi to Calcutta was challenged. In my opinion, therefore, the Commissioner of Income-tax committed no mistake or error when, as a result of the Supreme Court decision and being directed by the Central Board of Revenue, even assuming, as is the case of the petitioner, to transfer his income-tax file to the territorial Income-tax Officer, he transferred it to the Income-tax Officer, Special Circle, Ranchi. The Income-tax Officer, Special Circle, Ranchi, in pursuance of the general order, made by the Commissioner earlier under section 5(5) of the Act, had territorial jurisdiction, if I may use, that expression, to deal with the petitioner's case, who i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 21st April, 1951, under section 5(5) of the Act, was very much different in character and was passed in exercise of a wider and more general power of transfer conferred upon the Commissioner, than conferred either upon him or upon the Central Board of Revenue under section 5(7A) of the Act, the order dated the 18th August, 1952, passed under which provision of law by the Central Board of Revenue was successfully challenged by the petitioner before the Supreme Court. Under section 5(5) of the Act, the Commissioner had very wide powers to transfer the income-tax file of the petitioner. As a matter of fact, as it appears from the judgment of this court in Raja Bahadur Kamakhya Narain Singh v. Union of India not only the file of the petitioner, but by a general order, income-tax files of many such assessees were transferred from Patna, Special Circle, to Ranchi, Special Circle. The Commissioner of Income-tax, consequently, committed, as I have said, no error or mistake in retransferring the petitioner's file to Special Circle, Ranchi, after his success in the Supreme Court in his application under article 32 of the Constitution in which, as stated above, he challenged the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment upon the basis of which the arrears of tax were due, had requested another Income-tax Officer in the State of Travancore to forward the certificate to the Collector for realisation of the arrears. It was pointed out that the procedure to be followed in such a case was indicated in sections 3 and 5 of the Revenue Recovery Act, under which Act the proceedings were taken in that case. A corresponding provision in the Bihar and Orissa Public Demands Recovery Act to the one under section 3 of the Revenue Recovery Act is to be found in section 13. Section 5 of the Bihar and Orissa Act, however, does not incorporate the condition mentioned in section 5 of the Revenue Recovery Act, namely, that where any sum is recoverable as an arrear of land revenue by any public officer other than a Collector, the Collector of the district in which the office of that officer is situate shall, on the request of the officer, proceed to recover the sum as if it were an arrear of land revenue. No such words of limitation are to be found in section 46(2) of the Act or section 5 of the Bihar and Orissa Act. I am, therefore, inclined to think that the Income-tax Officer of any place in Bihar is compet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med to have commenced within the meaning of this section, if some action is taken to recover the whole or any part of the sum within the period hereinbefore referred to, and for the removal of doubts it is hereby declared that the several modes of recovery specified in this section are neither mutually exclusive, nor affect in any way any other law for the time being in force relating to the recovery of debts due to Government, and it shall be lawful for the Income-tax Officer, if for any special reasons to be recorded he so thinks fit, to have recourse to any such mode of recovery notwithstanding that the tax due is being recovered from an assessee by any other mode." It is undisputed in this case that a fresh demand, in pursuance of the appellate order of the Tribunal was made by the Income-tax Officer from the petitioner and it was served on him on the 16th October, 1954. As stated on his behalf during the course of arguments, the Commissioner of Income-tax had stayed the realisation of the tax on the 6th July, 1946, till the disposal of the appeal before the Tribunal. The realisation of the tax at his instance was further postponed till the 16th March, 1955, as stated earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral revenue. Supposing by an order made under section 5 of the Act, a case or a particular class of cases is transferred from the file of one Income-tax Officer to another. The order of transfer is challenged by a particular assessee. The proceeding in which the order is challenged remains pending, say, for a period of five years or more. Until the order of transfer is successfully challenged, it cannot be assumed that the Income-tax Officer, who is in seisin of the file in pursuance of the order of transfer, is to sit idle and take no action in regard to the file of a particular assessee. He takes action, finding that, unless he takes action, the realisation or recovery of the tax will be barred under section 46(7) of the Act. The order of transfer of the file to him is eventually set aside. If a view were to be taken that the action taken by him will be invalid within the meaning of the Explanation appended to the seventh sub-section of section 46 of the Act, the position will be too obviously anomalous. No other Income-tax Officer, except the one before whom the file of a particular assessee was pending in pursuance of the impugned order of transfer, could forward a certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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