TMI Blog1948 (9) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... Board of Revenue, passed an order on April 18, 1939, assigning various case to the Commissioner of Income Tax, Central, and amongst the case assigned was the case of the assessees, on April 27, 1939, the Commissioner of Income Tax, Central, purporting to act under Section 5(5), allocated the assessees case to the Income Tax Officer, Central Section VI, and on October 14, 1939, the Commissioner of Income Tax, Central, purporting to act under Section 5(5), allocated the case to the Income Tax Officer, Section VII. The order which is challenged as being without jurisdiction is the order of October 14, 1939. The material portion of Section 5(5) which deals with this question is :- (5) Inspecting Assistant Commissioners of Income Tax and Income Tax Officers shall perform their functions in respect of such persons or classes of person,.. in accordance with any orders which the Commissioner of Income Tax may make for the distribution and allocation of the work to be performed. Now it is not disputed that the Commissioner of Income Tax, Central, was within his rights when he made the order dated April 27, 1939, allocating the case to the Income Tax Officer, Section VI, but what is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clare that a certain procedure is unnecessary, it does not follow as a necessary implication halt such a procedure was necessary before such a declaration was made by the Legislature. What Mr. Kolah has got to satisfy lust is that in fact under the law as it existed before this Amending Act was passed the re-issue of the notice was incumbent and necessary. If the law required such a notice, then Mr. Kolah is right that inasmuch as sub-section (7A) was not retrospective the absence of such notice would render the assessment of the assessees bad. 3. Now in order to satisfy us that the re-issue of such a notice was necessary under the law as it existed, Mr. Kolah relies on Section 64 and he says that the law gave the assessees a right to be assessed by a particular officer and that right could not be taken away, and if the assessees are deprived of that right by their assessment being transferred to another officer, they should be given a fresh notice of assessment. There is no basis whatever for this contention, because the right to be assessed by a particular officer was in terms taken a way by the Legislature when they enacted what was known as Ordinance IX of 1939 and which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 1935-36. It may be that although the firm was a resident firm in the year 1935-36, it still might be a non-resident firm in the assessment year 1936-37. Therefore the Income Tax department again considered all the materials placed before it and once again the department attached greatest importance, and rightly, to the registration certificate issued by the Registrar of Partnerships. So far as the position was concerned, it continued to be the same as it was when the High Court considered this question. Apart from the certificate the department had also other materials before it and all those materials are mentioned and set out in the statement of the case submitted to us. Under the circumstances it is impossible to say that there was no material before the Tribunal which justified it in coming to the conclusion that the assesses were a resident firm in British India in the year 1936-37. 5. The next question deals with certain remittances received by the assessees in the year of account. The assesses made a profit at Indore in the Maru year 1988-89 and suffered losses in the years 1989-90 and 1990-91. It also appears that in the year 1991-92, with which we are concerned, they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have been made into British India, and the Tribunal has found it as a fact that such remittances were made out of available profits. The question really therefore resolves itself merely into question of fact rather than a question of law. The question of law which the Tribunal has asked us to answer is whether under Section 4(2) of the old Act the Income Tax authorities are empowered to take into consideration the income, profits and gains, including losses, of an year preceding the previous year relevant to the assessment year. Now under the old Section 4(2) what was taxable was not income, profits and gains, but the remittances, and for the purposes of remittances the relevant year was previous years. But I see no reason why for the purposes of income, profit and gains the relevant years should be the previous years. Any income, profits or gains whether earned in the previous year or years prior thereto would become taxable previews year or years prior thereto would become taxable provided they were remitted in the previous year, and therefore it cannot be stated that the Income Tax authorities are precluded by law from considering the true state of affairs by looking ..... 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