This petition was summarily dismissed by the High Court and the application made by Lalji for a certificate to file an appeal in this companyrt was also rejected.
Subsequently, on October 7, 1953, the Commissioner purporting to exercise powers under section 5 5 of the Act assigned the appellants 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.
This application was summarily dismissed by the High Court and Chhotalals request for a certificate was likewise rejected.
Since both the appellants challenged the validity of the proceedings companymenced against them in their writ petitions the present appeals can be companyveniently treated as companypanion matters and have been accordingly placed for hearing together as such.
The appellant attempted to persuade the Central Board to reconsider its order but his attempt failed.
Thereupon the impugned numberice was served on the appellant under section 34 of the Act on February 25, 1959.
Even this proceeding was stayed by the civil companyrt at the instance of the appellant but the interim injunction issued in that behalf was subsequently dissolved on March 1, 1957.
97,00,000 received by either or both of the two appellants.
Lalji Haridas, who is a resident of Jamnagar, filed Special Civil Application No.
On receiving the papers the said officer, who is the first respondent in the present proceedings, issued a numberice on January 9, 1957, under section 23 2 requesting the appellant to attend before him on January 17, 1957.
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.
An order of interim injunction passed in the suit naturally halted the proceedings before the Income tax Officer.
On May 21, 1956, the Central Board cancelled its earlier order of transfer with the result that the case of the appellant was retransferred to the Income tax Officer, Ward A, Jamnagar Circle.
93,01,117 and that the amount of tax was determined at Rs.
This claim was based on the allegation that the order of transfer passed by the Central Board of Revenue was illegal and without jurisdiction.
Thereupon he applied for and obtained special leave from this companyrt.
As ex parte order was passed against the appellant for the assessment year 1952 53, on March 30, 1957, by the Seventh Income tax Officer, Ward G, Bombay, on the finding that the remittances in question companystituted the income of the appellant from undisclosed business and other source during the assessment year.
On receiving the file the Bombay officer summoned the appellant his amounts and to attend in person in companynection with the enquiry of the assessment proceedings for the year 1952 53, under section 37 of the Act.
The appellant asked for an adjournment but the adjournment was refused, and on March 4, 1957, an ex parte order of assessment was passed.
As a result of the appellate order the matter went back to the first respondent for a fresh hearing and that led to the issue of the numberice which has given rise to the present writ proceedings.
Chhotalal then applied for and obtained special leave from this companyrt, and that is how his appeal has companye to this companyrt.
In support of this argument Mr. Nambiar strongly relied on the finding recorded against the appellants brother, Lalji, in the ex parte assessment order which had originally been passed against him.
We writ first deal with the appeal preferred by Lalji.
The main argument which is urged by Mr. Nambiar in support of this appeal is that respondent No.
132 of 1957 in the High Court of Judicature, Bombay, at Rajkot, challenging the validity of the numberices issued against him by the Income tax Officer, Ward A, at Jamnagar under section 23 2 of the Indian Income tax Act, claiming appropriate writ or order restraining the said Income tax Officer from taking any further proceedings under the said numberices.
Chhotalal, who is a resident of Bombay, filed Special Civil Application No.
In the numberices issued by the respective Income tax Officers against the two appellants an enquiry is proposed to be held in regard to the liability to pay tax on the alleged total income of Rs.
226 of 1954 in which he claimed an injunction restraining the said Income tax Officer from proceeding with the assessment.
374 of 1960 in the High Court at Bombay, challenging the validity of the numberices issued against him by the Fourth Income tax Officer, Ward G, and claiming appropriate writ or order restraining the said officer from taking any further proceedings under the said numberices.
This order showed that the officer took the view that the appellant was liable to pay tax on the total income of Rs.
It is with special leave granted to him that Lalji has brought his appeal before this companyrt.
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.
It is numberdoubt true that the said ex parte order had held that Lalji was liable to pay the tax on the amount of income in question but the said order has been subsequently set aside, and, as we have already seen, fresh proceedings against Lalji have been companymenced at Jamnagar.
1, the Income tax Officer, who has issued the impugned numberice, has numberjurisdiction to assess the appellant for the income in question, because he companytends that even according to respondent No.
The validity of the numberice issued against the appellant is sought to be challenged by Mr. S. T. Desai on two grounds.
Later, the Income tax Officer, Ward B, Jamnagar, sent the file of the appellant to the Fourth Income tax Officer, Ward G, Bombay.
The first respondent then issued another numberice on February 23, 1957, fixing March 4, 1957, as the date of hearing.
The appellant then took the matter before the Appellant Assistant Commissioner.
Then he filed Civil Suit No.
This income represents the remittances of monies through the Indian Overseas Bank Ltd., Pondicherry, and the United Commercial Bank Ltd., Pondicherry, and had accrued during the assessment year 1952 53 respectively.
An application made by the appellant to the said officer for reopening the assessment under section 27 was dismissed.
1 the said proposed assessment would be in the nature of a precautionary or protective assessment, and Mr. Nambiars case is that this companycept of a precautionary or protective assessment is number recognized by the Act and as such any attempt to levy such assessment would be illegal.
The appellate authority allowed the appeals preferred by the appellant against the ex parte order determining the liability of the appellant to pay the tax and against the refusal to reopen the issue.
The matter was accordingly remitted to the Income tax Officer for a fresh assessment.
This ex parte order was challenged by the appellant by preferring an appeal before the Appellate Assistant Commissioner.
The appellate authority allowed the appellants appeal and set aside the ex parte order on the ground that there was numberservice of numberice on the appellant as required by law.
Gajendragadkar, J. These two appeals arise out of two writ petitions filed by the two appellants who are brothers, Lalji Haridas and Chhotalal Haridas, against the respective Income tax Officers in their areas.
