TMI Blog1972 (8) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... unal to refer to the High Court any question of law arising out of an order made under section 254 of the Act. The term " Commissioner " was amended by Act 19 of 1970, with effect from April 1, 1970. It reads : " 'Commissioner' means a person appointed to be a Commissioner of Income-tax under sub-section (1) of section 117, and includes a person appointed to be an Additional Commissioner of Income-tax under that sub-section. " Section 116 describes the classes of income-tax authorities for the purposes of the Act. Clause (c), as amended, declares Commissioners of Income-tax and Additional Commissioners of Income-tax to be one of such classes of authorities. Section 117 empowers the Central Government to appoint Commissioners of Income-tax as well as Additional Commissioners of Income-tax apart from the authorities mentioned therein. We then come to section 121, the marginal note of which reads : " Jurisdiction of Commissioners ". Sub-section (1) of that section enjoins that " the Commissioners shall perform their functions in respect of such areas or of such persons or classes of persons or of such incomes or classes of income or of such cases or classes of cases as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng jurisdiction over the assessee would be the only person who can be the Commissioner for the purpose of these sections. " The Tribunal, therefore, found that " the Commissioner of Income-tax having jurisdiction over the assessee should, therefore, mean a Commissioner of Income-tax having complete territorial or other jurisdiction over the assessee and not one who can perform only some of the functions allotted to him ". The Tribunal, therefore, held that the notification dated June 19, 1971, as ultra vires of the mandatory provisions of section 130 observing that the Board was not competent to empower the Additional Commissioner of Income-tax to act under section 256 of the Act. In the alternative the Tribunal held that even if the said notification is valid, the annexure does not authorise the Additional Commissioner of Income-tax to file an application under section 256 before the Appellate Tribunal. It further held that even if the notification authorised the Additional Commissioner to file such application, he should describe himself and sign in the capacity of Commissioner of Income-tax. The short question, therefore, is whether the Additional Commissioner is compet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on particular classes of persons, it is a useful legislative device to define the persons belonging to such classes, and, thereafter, refer to the classes alone. This device not only saves a great deal of space and eliminates the repetition of long cumbersome identifications, but of greater importance, it avoids the danger of minute discrepancies in descriptions which confuse or thwart the interpretation and administration of the Act. It is in this background that we have to see whether the word " Commissioner " used in section 130(2) has a restricted meaning confined only to the Commissioner or has an extended meaning so as to take in Additional Commissioner also. Any answer to this question would depend, firstly, upon the correct appreciation of the definition of the term " Commissioner " given in section 2(16) of the Act. And, secondly, on the object and purpose of section 130(2) of the Act. Even on a cursory reading of section 2(16), the definition, it would be clear that the words " means " and " includes " both are used. These are the two forms of interpretation clause usually employed. In the first, where the word defined is stated to " mean " so and so, the definit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e only one Commissioner has jurisdiction over such assessee, the Commissioner would be that Commissioner who has such jurisdiction. In a case, however, where two or more Commissioners have concurrent jurisdiction over such assessee, then the Commissioner will be that person who is empowered to perform such function by the Board. What is clear is that wherever there is a single Commissioner, that is to say, there is no other Commissioner or Additional Commissioner, then the Commissioner would perform all the functions of a Commissioner in relation to an assessee. But, wherever there are two or more Commissioners having concurrent jurisdiction, then the Board will empower one of them, whether Commissioner or Additional Commissioner, to perform such function. So far as sub-section (1) is concerned, it presents no difficulty in understanding its purpose. Sub-section (2) is expressly made subject to the provisions of sub-section (1). Its purpose is restricted to five sections mentioned therein which includes section 256 with which we are concerned. It states that the word " Commissioner " used in those sections shall be the Commissioner having for the time being jurisdiction over the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the legislative problem with which section 130 is concerned, is cases " in relation to an assessee ". Sub-section (1) applies to all other provisions under which the Commissioner is expected to perform his duties in relation to an assessee. Sub-section (2) applies to the duties of the Commissioner under the specified five sections. Since sub-section (2) is made subject to sub-section (1), the power of the Board under sub-section (1) can be exercised in a case arising under sub-section (2) also. There is, therefore, no difficulty in giving the same extended meaning to the word " Commissioner " appearing in both the sub-sections of section 130. That word would not only mean Commissioner as such but also Additional Commissioners. The Tribunal has stated that such a construction would produce absurd results, but nowhere what those absurdities would be are mentioned. The learned advocate for the respondent could not point out as to what those absurdities would be. We can see nothing absurd in such a construction. We are fortified in this view by a decision of the Delhi High Court in National Agricultural Co-operative Marketing Federation Ltd. v. Central Board of Direct Taxes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distribution and allocation of the work to be performed. What is clear is that section 121 not only empowers the Board to appoint a Commissioner for an area, etc., as indicated above, but also has power to distribute and allocate the work to be performed where more than one Commissioner shall have concurrent jurisdiction over the same area or the same persons, etc., as mentioned above. Section 121, therefore, is wider in its amplitude and addresses itself altogether to a different legislative problem. Section 121 does not apply to a case " in relation to an assessee " because a specific provision almost on similar lines is made in section 130. Thus, the two legislative problems, one under section 121 and the other under section 130, have been differently provided for. It would be useful to avoid confusion between these two provisions. They may be similar but are designed to meet two different legislative problems. They neither overlap nor create any impediment to the interpretation of either of the sections. The word " Commissioner " used in section 121 is clearly used keeping in view the extended definition and includes in its embrace an Additional Commissioner also. No reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , including Additional Commissioner, concurrent jurisdiction over the same area or persons or classes of persons or incomes or classes of incomes or cases or classes of cases, and to distribute and allocate the work among these Commissioners and Additional Commissioners on the functional basis. It is being specifically provided that where such concurrent jurisdiction over an assessee is assigned to two or more Commissioners (including Additional Commissioners), the Commissioners competent to perform any function in relation to such assessee will be the Commissioner (or Additional Commissioners) to whom such function has been assigned under the order of the Board. " Notification No. S.O. 2162 dated May 29, 1970, was issued in exercise of the powers conferred by section 121(1) of the Act by the Central Board of Direct Taxes. According to that notification, Additional Commissioners of Income-tax specified in column (3) of annexure A will have concurrent jurisdiction along with the Commissioner of Income-tax specified in column (2) of annexure " A ". And they will perform all or any of the functions performed by the respective Commissioners of Income-tax in respect of the jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n doubt that the Additional Commissioner has been authorised to file an application under section 256 of the Act. The language of the said clause denotes clearly its width and brings out the intention of the author in bold relief that the Additional Commissioners have been conferred with wide powers with a view to relieve the burden of the Commissioners. Even if it is held that " all work relating to second appeals " would not take in an application for reference against an order passed in a second appeal by the Tribunal, even then " all work relating to references " would undoubtedly take within its fold an application under section 256. It could not be doubted that in order to have a reference before the High Court, it is necessary to file an application under section 256 and get the matter referred to the High Court. That being an essential step for a reference before the High Court, it must be held that an application to refer is a work relating to the reference. That apart, the words " any other proceedings before these authorities " would certainly include a proceeding under section 256 before the Income-tax Appellate Tribunal. No reason is shown as to why such an application ..... X X X X Extracts X X X X X X X X Extracts X X X X
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