9911796707
TMI Blog1969 (1) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... d dated the 23rd March, 1965, issued under section 156 of the Act calling upon the petitioner to pay a sum of Rs. 81,882.06 as income-tax for the assessment year 1960-61. A copy of the order of assessment for the said assessment year dated the 22nd March, 1965, was also served on the petitioner along with the said notice. The order of assessment was passed to the best of the judgment of the Income-tax Officer, " D " Ward, Dist. I(I), Calcutta, the respondent No. 1 herein, under the provisions of section 144 of the Act. Paragraph 2 of the order of assessment, which is material for our purpose, is as follows : " Later this file was transferred from I.T.O. 'J' Ward, Dist. I(I) to I.T.O. 'D' Ward, Dist. I(I) under C.I.T.'s order. Accordingly, the case was refixed for hearing giving the assessee an opportunity of being heard. A notice under section 131 of the Income-tax Act, 1961, was issued at the different addresses shown in the return for the personal attendance of the assessee and for the production of books of accounts and for the proof of the sources of income and for the production of evidence regarding the sources of the investments. But the summonses which were issued under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case there was no question of any failure a contemplated under section 144(a) of the Act. Further, it was nowhere stated in the order of assessment that any notice was issued under section 142(1) of the Act or there was any failure to comply with all or any of the terms thereof in the present case. Mr. Bhabra next drew my attention to paragraph 2 of the order of assessment which has been set out hereinabove and where it has been stated that a notice under section 131 of the Act was issued at the different addresses shown in the return for the personal attendance of the assessee and for production of the books of account and for the proof of the sources of income and for the production of evidence regarding the sources of the investments. The said summons according to the order of assessment which was issued by registered post came back unserved. It further appears from paragraph 2 of the order of assessment that the Income-tax Officer proceeded to complete the assessment under section 144 of the Act as there was no compliance with the notice under section 131 of the Act on the date of the hearing. On the basis of the aforesaid statements in the order of assessment, Mr. Bhab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... According to this contention, the mere omission to mention the fact in the order of assessment that there has been a non-compliance with any of the notices mentioned in the several sub-clauses of section 144 of the Act would not vitiate the order of assessment as being without jurisdiction. According to Mr. Gupta, what gives jurisdiction to the Income-tax Officer to make an order of assessment under section 144 of the Act is the fact of non-compliance with any of the notices mentioned in the various sub-clauses of section 144 and not the mention thereof in the order of assessment. Mr. Gupta next invited me to hold that the letter dated the 12th November, 1964, which has been set out hereinabove was, in effect, a notice under section 143(2) of the Act and non-compliance with the terms thereof was sufficient to authorise the Income-tax Officer to assume jurisdiction under section 144 of the Act to make the order of assessment in the present case. Mr. Gupta pointed out that no statutory form was prescribed for notices under section 143(2) of the Act. He further contended that the mere fact that the letter dated the 12th November, 1964, is not expressed to be issued under any partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be construed as a notice under section 143(2) of the Act. In the circumstances, I must hold that the conditions precedent for the assumption of jurisdiction under section 144 of the Act were not present in the instant case and the order of assessment under section 144 of the Act must be therefore struck down as being without jurisdiction. Even if I were to accept Mr. Gupta's contention on this point, there is, in my view, a more fundamental difficulty in Mr. Gupta's way. It is well settled that, where the jurisdiction of a tribunal is limited jurisdiction depending on a preliminary finding as to some collateral fact necessary for the assumption of jurisdiction, the tribunal cannot give itself jurisdiction on a wrong finding of such collateral fact. If it does assume jurisdiction on such a wrong finding of collateral fact, the High Court in exercise of its writ jurisdiction can set aside such an erroneous finding on a collateral fact and the assumption of jurisdiction on the basis thereof. Reference may be made in this connection to Halsbury's Laws of England third edition, volume 11, paragraph 270, where the following passage occurs : " The case is more difficult where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact ; a court with jurisdiction confined to the City of London cannot extend such jurisdiction by finding as a fact that Piccadilly Circus is in the Ward of Chape. " He also drew my attention to another decision of the English Court of Appeal in the case of White and Collins v. Minister of Health, where similar observations have been made by Luxmoor L. J. at pages 855-856 of the report. In the present case, the legislature has chosen to give the Income-tax Officer the power and authority to make an assessment to the best of his judgment under section 144 of the Act under certain circumstances. That jurisdiction is a limited jurisdiction dependent upon the existence of certain collateral facts, viz., the non-compliance by the assessee with the various notices mentioned in sub-clauses (a), (b) and (c) of that section. If, in a particular case, the Income-tax Officer had chosen to assume jurisdiction under section 144 of the Act and to make a best judgment assessment on a wrong finding as to a jurisdictional fact, viz., non-compliance with any of the notices mentioned in section 144 of the Act, the High Court in exercise of its jurisdiction under article 226 of the Constitution is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the order of assessment was not served on his client. He argued in the alternative that the said notice was not served on the petitioner in accordance with law and in the mode published under the Income-tax Act. 1961. He drew my attention to the various authorities on the question of a valid service of a notice under the provisions of the Indian Income-tax Act, 1922, and the Income-tax Act, 1961. In this connection, Mr. Gupta also referred me to to various decisions and made submissions in answer to the contentions of Mr. Bhabra on this point. In view of my finding on the other points it is not necessary for me to decide this question in the present case. As I have already observed, even if there was no valid service of the notice under section 131 of the Act and there has been non-compliance with the terms of such notice, this would not, as I have already indicated, invest the Income-tax Officer with jurisdiction to make an order of best judgment assessment under section 144 of the Act. In the result, this application must succeed and the rule must be made absolute. There will be a writ in the nature of certiorari quashing and setting aside the order dated the 22nd March, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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