TMI Blog1997 (7) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... nding before the High Court at Patna, to the permanent Bench of the Patna High Court at Ranchi. Besides the above relief, the petitioner further seeks a direction to the Commissioner of Income tax to henceforth file all reference cases under section 256(1) of the Act at the Ranchi Bench of the Patna High Court arising out of the orders of the officers of the Income-tax Department who are having their respective offices within the territorial jurisdiction of the Ranchi Bench of the Patna High Court and in the case of any refusal by the said Tribunal under section 256(1) of the Act, the Commissioner should refer it to the Ranchi Bench of the Patna High Court under section 256(2) of the Act. We have heard Mr. Ajit Moitra, learned counsel for the petitioner, and Mr. K. K. Vidyarthi, learned counsel for the Revenue. According to Mr. Moitra after the establishment of a permanent Bench of the Patna High Court at Ranchi, under the provisions of the High Court at Patna (Establishment of a Permanent Bench at Ranchi) Act, 1976 (hereinafter to be referred to as "the Act of 1976"), and in view of the territorial jurisdiction having been carved out under the Act, the reference under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reads as follows : "256. Statement of case to the High Court.--(1) The assessee or the Commissioner may, within sixty days of the date upon which he is served with notice of an order under section 254, by application in the prescribed form, accompanied where the application is made by the assessee by a fee of two hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and, subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court : Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days. (2) If, on an application made under sub-section (1), the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the assessee or the Commissioner, as the case may be, may, within six months from the date on which he is served wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 116 prescribes different classes of income-tax authorities for the purposes of the Act. Under section 117, the Central Government may appoint such persons as it thinks fit to be income-tax authorities. The Board has been empowered under section 118 of the Act to issue directions to the income-tax authorities by notification. Section 120 of the Act prescribes the jurisdiction of the income-tax authorities. Sub-section (1) of section 120 says that the income-tax authorities shall exercise all or any of the powers and perform all or any of the functions conferred on, or, as the case may be, assigned to such authorities by or under the Act in accordance with such directions as the Board may issue for the exercise of the powers. Sub-section (3) of that section says that the Board while issuing the directions may give due regard to the territorial area, persons or classes of persons, incomes or classes of income, and cases or classes of cases. Section 124 of the Act prescribes the jurisdiction of Assessing Officers. According to sub-section (1) of that section, where the Assessing Officer has been vested with jurisdiction over any area, within the limits of such area, he shall have j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Bench of not less than two judges of the High Court. The Appellate Tribunal in exercise of power conferred by sub-section (5) of section 255 have made rules, namely, the Income-tax (Appellate Tribunal) Rules, 1963 (hereinafter to be referred to as "the Rules" for short). According to rule 3 of the Rules, a Bench shall hold its sittings at its headquarters or at such other place or places as may be authorised by the President. Rule 4 provides that a Bench shall hear and determine such appeals and applications made under the Act as the President may by general or special order direct. Rule 20 of the Rules provides that a place of hearing of appeals shall be fixed with reference to the current business of the Tribunal and the time necessary for the service of the notice of appeal, so that the parties should get sufficient time to appear and put their cases before the appellate authority. According to rule 37 of the Rules for the purpose of an application under section 256(1) the procedure provided under rules 6, 7, 12, 19, 20, 21, 23, 26 and 34 shall apply mutatis mutandis. As per rule 40 the Bench which heard the appeal giving rise to the application shall hear it unless the Pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Meerut in U. P. and the assessee went in appeal which was decided by the Appellate Assistant Commissioner, Meerut. Thereafter further appeal was heard by the Appellate Tribunal (Delhi Bench). On the application filed by the assessee a reference was made to the Delhi High Court under section 256(1) of the Act. In the said reference case an objection was raised that it was the Allahabad High Court where the reference should have been made. The Delhi High Court in the said reference case considered the various provisions of the Act and the Rules and held as under : "It seems to us that, when there is no direct statutory provision governing the matter, the proper course would be to apply the same basis that has been adopted already with regard to the jurisdiction of a Bench of the Appellate Tribunal for the following reasons : Firstly, as already noticed, the jurisdiction of an Income-tax Officer, i.e., the place of assessment, has been required under section 64 of the Indian Income-tax Act, 1922, to be determined on the basis of the place where the assessee carries on a business or profession or vocation and, in other cases, the area in which the assessee resides. This basis, howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act, the reference is just an intermediate stage, and the case (appeal before the Bench) would be finally disposed of by the Bench after receiving the judgment of the High Court in the reference. So, instead of adopting a different basis for that intermediate stage, it would be quite appropriate to adopt the same basis as the one adopted for determining the jurisdiction of the Bench." In the case of CIT v. S. Sivaramakrishna Iyer [1968] 70 ITR 860 (Mad), a similar question of jurisdiction of the High Court under section 256 of the Act arose before the Madras High Court and it was held as under : "As there are no statutory provisions for determining the proper High Court to which reference under section 66(2) should be made where the Tribunal has jurisdiction over more than one State, the principles which apply to a determination of the jurisdiction of a court should be applied, and in this view, where a Tribunal has jurisdiction over more States than one, and it has to make a choice, it must be guided by the principles of section 64, and make the reference to the High Court which has jurisdiction over the place where the assessee carries on business, profession or vocatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1922, as well as section 269 of the Income-tax Act, 1961, define the jurisdiction of the High Court in relation to the State to which the matters pertain and as interpreted by this court in the earlier decision above referred to, the Rajasthan High Court is the appropriate High Court to which the reference in this case should have been made. We are, therefore, of the opinion that the reference to this court has to be returned unanswered to the Tribunal." Having regard to the various provisions of the Act read with the relevant rules of the Rules, and the principles of law enunciated by the various High Courts, I have no hesitation in holding that for the purpose of reference under section 256 of the Act, the jurisdiction of the High Court should be determined on the basis of the place where the assessee carries on business or profession or vocation and in other cases the area in which the assessee resides, as under the law the jurisdiction of the Income-tax Officer and the place of assessment has to be determined on the basis of the place where the assessee carries on business or profession and/or the area in which the assessee resides. Now the main point in issue before us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court in the case of Syed Zafrul Hassan, AIR 1986 Patna 194 have considered the scope and effect of the aforesaid Act of 1976 and the rule while deciding the objection raised by the State with regard to the maintainability of an application for anticipatory bail filed in the Patna High Court in respect of commission of an offence within the territorial jurisdiction of District Singhbhum, where a case was registered. Their Lordships after considering the aforesaid Act of 1976 have held as under : " It necessarily follows from the aforesaid section 2 of the Ranchi Bench Act and rule 3 of the Rules of the Patna High Court that after the establishment of a permanent Bench at Ranchi, that Bench alone has now to exercise jurisdiction and power for the time being vested in the Patna High Court arising out of cases in the districts of Hazaribagh, Giridih, Dhanbad, Ranchi, Palamau and Singhbhum. Learned counsel for the State had rightly contended that if the parties were allowed to whimsically select the jurisdiction from which Bench of the High Court they would seek redress, it would violate both the letter and spirit of the statutory provisions. Further, it would render the proviso to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation regarding maintainability of the reference case before the Patna High Court. According to the assessee, since the case relates to the area falling within the territorial jurisdiction of the Ranchi Bench of the Patna High Court, the reference ought to have been made before this court. The said objection was disposed of by the Division Bench in terms of the order dated July 30, 1984, passed in Tax Case No. 52 of 1979. For better appreciation the said order dated July 30, 1984, of the Division Bench is reproduced hereinbelow : "15. July 30, 1984. By order dated December 4, 1979, it was directed that the petition at Flag-M be disposed of at the time of hearing of this taxation case. Unfortunately, no one has appeared on behalf of the assessee to raise any objection with regard to the jurisdiction of the Patna Bench in cases arising out of references made by the Income-tax Appellate Tribunal, Patna. Even so, we have considered the matter and in our view in all income-tax references the Patna Bench has got the jurisdiction to hear and dispose of the matter since the lis and the cause of action arises from the order of the Appellate Tribunal at Patna. It is a different matter tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
