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TMI Blog1940 (9) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1934 the Additional Income-tax Officer of Meerut issued a notice under Section 22(2) to the assessee asking him to submit a return. The return was submitted in June 1934, but by an application in September 1935 the assessee objected to the jurisdiction of the Income-tax Officer of Meerut. A question about the place of assessment thus arose within the meaning of Section 64(3) of the Act and the Income-tax Officer referred the matter to the Commissioner of Central and United Provinces for determination. The Commissioner by an order dated October 21, 1935 asked the Income-tax Officer to obtain an affidavit from the assessee and an affidavit containing all the statements upon which the assessee objected to being assessed in the United Provinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the place of assessment was ultimately determined observed, In fact no fresh proceedings under Section 64 were needed afterwards and if the appellant has any grievance in this respect, I cannot adjudicate upon it as no appeal is provided by Section 30 of the Income-tax Act against any order under Section 64." It is clear that the Assistant Commissioner was of the opinon that an appeal to him on a question of jurisdiction was incompetent. He then proceeded to dispose of the other questions raised in the appeal and dismissed the same. There was then, as is usual in cases of this kind, application to the Commissioner under Section 33 of the Act and an application requesting the Commissioner to state a case under Section 66(2) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... competent under Section 66 to interfere with that decision. Our powers are circumscribed by Section 66 of the Act and only a question of law arising out of the appellate order of the Assistant Commissioner can be referred to us. The Assistant Commissioner obtains his jurisdiction to decide an appeal against the decision of an Income-tax Officer under the provisions of Section 30 of the Act, and as was pointed out by one of us who delivered the principal judgment in the case of this very assessee against the Commissioner of Income-tax, Seth Kanhaiyalal v. Commissioner of Income-tax, C.P. & U.P. it is not permissible to an assessee to create a question arising out of the appeal by putting it in the grounds of appeal when as a matter of fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Dine Nath Hem Raj, that where an Income-tax Officer proceeded to decide the question of the principal place of business, when a dispute on the point had arisen in flagrant disobedience of the provisions of Section 64, he had no jurisdiction whatsoever to make the assessment and "to refuse to answer the questions on the ground that the procedure by which this stage has been reached is irregular would be a denial of justice". It is not necessary for the purpose of deciding this case to state in detail the complicated facts of Dina Nath Hem Rajs Case and to elaborate the reasonings given by the learned Judges therein for deciding certain questions. It appears to us that their Lordships were very much impressed by the fundamental ir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to a decision made under Section 64." We are not called upon to say as to what we ourselves would have done on facts which arose in Dina Nath Hem Rajs Case, and we should not be deemed to agree with everything that was said in the case, but we agree that where the place of assessment has been decided under the provisions of Section 64(3) and an Income-tax Officer accepting the final order of the Commissioner or Commissioners or the Central Board of Revenue proceeds to make an assessment, the plea of jurisdiction cannot be raised before the Assistant Commissioner on appeal and the High Court cannot deal with that question under Section 66 of the Act. It was then contended that the final order of the Commissioners of this Province an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of representing his views had not been given to the assessee, the order none the less would have been an order under Section 64(3) and could not be challenged in the way in which it is attempted to be challenged by the assessee in the present application; but it is not necessary for us to decide this point because we have come to the conclusion that the formalities enjoined by the proviso were complied with in the present case. The conclusion at which we have arrived is that the decision of the learned Commissioner that the questions formulated by the assessee on the point of jurisdiction cannot form the subject of a reference to the High Court is correct. We, therefore, reject this application with costs . The counsel for the Department ..... X X X X Extracts X X X X X X X X Extracts X X X X
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