TMI Blog1961 (7) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered in the said proceedings. Proceedings against Chhotalal may also be taken by the Income-tax Officer and continued and concluded, but until the proceedings against Lalji are finally determined no assessment order should be passed in the proceedings taken against Chhotalal. If in the proceedings taken against Lalji it is finally decided that it is Lalji who is responsible to pay tax for the income in question it may not become necessary to make any order against Chhotalal. If, however, in the said proceedings Lalji is not held to be liable to pay tax or it is found that Lalji is liable to pay tax along with Chhotalal it may become necessary to pass appropriate orders against. Chhotalal. When we suggested to the learned counsel that we propose to make an order on these lines they all agreed that this would be a fair and reasonable order to make in the present proceedings. Appeal dismissed. - - - - - Dated:- 25-7-1961 - Judge(s) : P. B. GAJENDRAGADKAR., K. SUBBA RAO., M. HIDAYATULLAH., J. C. SHAH., RAGHUBAR DAYAL JUDGMENT The judgment of the court was delivered by GAJENDRAGADKAR J.---These two appeals arise out of two writ petitions filed by the two appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Jamnagar, sent the file of the appellant to the Fourth Income-tax Officer, Ward G, Bombay. On receiving the file the Bombay officer summoned the appellant to produce his accounts and to attend in person in connection with the enquiry of the assessment proceedings for the year 1952-53, under section 37 of the Act. The appellant objected to the validity of the transfer of his file to Bombay and disputed the jurisdiction of the Bombay officer to deal with the matter. On September 30, 1953, the Central Board of Revenue passed an order under section 5(2) of the Act directing that the Commissioner of Income-tax (Central), Bombay, shall perform his functions in respect of persons including the appellant. Subsequently, on October 7, 1953, the Commissioner purporting to exercise powers under section 5(5) of the Act assigned the appellant's case to the Income-tax Officer, Section IV (Central), Bombay, and directed that the said officer shall perform the functions of an Income-tax Officer in respect of the case so assigned. The appellant attempted to persuade the Central Board to reconsider its order but his attempt failed. Then he filed Civil Suit No. 226 of 1954 in which he claimed an inj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Income-tax Officer ; that is not a point which can be legitimately agitated in writ proceedings. We, therefore, do not propose to deal with this point. If the appellant is so advised he may raise this point before the first respondent, and we have no doubt that if it is so raised the first respondent will deal with it in accordance with law. The question of jurisdiction raised by the appellant is, in our opinion, not well founded. It is significant that the case for the appellant is that the order of transfer passed by the Central Board on September 30, 1953, was illegal and unauthorised. Indeed, in the proceedings before us the validity of the said order is not sought to be supported even by the respondent so that if the said order was invalid there can be no doubt that the subsequent order passed by the Commissioner of Income-tax (Central), Bombay, assigning the case to the Income-tax Officer, Section IV (Central), Bombay, would itself be invalid. It is obvious that this latter order has been passed by the Commissioner in pursuance of the authority conferred on him by the earlier order passed by the Central Board itself. The sequence of the orders leaves no doubt on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferring an appeal before the Appellate Assistant Commissioner. The appellate authority allowed the appellant's appeal and set aside the ex parte order on the ground that there was no service of notice on the appellant as required by law. The matter was accordingly remitted to the Income-tax Officer for a fresh assessment. Thereupon the impugned notice was served on the appellant under section 34 of the Act on February 25, 1959. The main argument which is urged by Mr. Nambiar in support of this appeal is that respondent No. 1, the Income-tax Officer, who has issued the impugned notice, has no jurisdiction to assess the appellant for the income in question, because he contends that even according to respondent No. 1 the said proposed assessment would be in the nature of a precautionary or protective assessment, and Mr. Nambiar's case is that this concept of a precautionary or protective assessment is not recognised by the Act and as such any attempt to levy such assessment would be illegal. In support of this argument Mr. Nambiar strongly relied on the finding recorded against the appellant's brother, Lalji, in the ex parte assessment order which had originally been passed agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en received either by A or B or by both together, it would be open to the relevant income-tax authorities to determine the said question by taking appropriate proceedings both against A and B. That being so, we do not think that Mr. Nambiar would be justified in resisting the enquiry which is proposed to be held by respondent No. 1 in pursuance of the impugned notice issued by him against the appellant. Under these circumstances we do not propose to deal with the point of law sought to be raised by Mr. Nambiar. We would, however, like to add one direction in fairness to the appellants. The proceedings taken against both the appellants should continue and should be dealt with expeditiously having regard to the fact that the matter is fairly old. In the proceedings taken against Lalji the Income-tax Officer should make an exhaustive enquiry and determine the question as to whether Lalji is liable to pay the tax on the income in question. All objections which Lalji may have to raise against his alleged liability would undoubtedly have to be considered in the said proceedings. Proceedings against Chhotalal may also be taken by the Income-tax Officer and continued and concluded, but ..... X X X X Extracts X X X X X X X X Extracts X X X X
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