Sikri, J. - (1.) On January 24, 1963, the Commissioner of Income-tax, West Bengal, sent the following notice to Smt. Kalawati Harlalka, appellant before us, hereinafter referred to as the assessee: "Sub:Income-tax assessments of 1952-53 to 1960-61. Assessments erroneous and prejudicial to the interests of revenue - Revision of assessments under Sec. 33B of the Indian Income-tax Act 1922- proposal for- Notice. regarding "On calling for and examining the records of your case for the assessment years 1952-53, 1953-54, 1954-55, 1855-56, 1956-57, 1957-58, 1958-59, 1959-60 and 1960-61 and other connected records, I consider that the orders of assessment passed by the Incometax Officer 'D' Ward, Howrah, on 7th February, 1961, are erroneous in so far as they are prejudicial to the interest of revenue for the following reasons amongst others.
(2.) Enquiries made have revealed that no business as alleged was carried on from the address declared in the return. Also the said Income-tax Officer was not justified in accepting the initial capital, the acquisition and sale of jewellery, the income from business, gift made by you etc. without any enquiry or evidence whatsoever.
(3.) I, therefore, propose to pass such orders thereon as the circumstances of the cases justify after giving you an opportunity of being heard under the powers vested in me under Section 33B of the Income-tax Act, 1922. The cases will be heard at 11 a m. on 1st February, 1963 at my above office when you are requested to produce the necessary evidence in support of your contentions. Objections in writing accompanied by necessary evidence, if any, received on or before the appointment for personal hearing will also be duly considered. Please note that no adjournment of the hearing will be granted." The assessee on February 1,1963, protested to the Commissioner against the issue of the notice and stated that the said notice was absolutely bad in law, illegal and void. On the same date the assessee filed an application under Article 226 of the Constitution in the High Court at Calcutta, inter alia praying that the said notice, dated January 24, 1963, be quashed or set aside and the Commissioner of Income-tax be restrained from giving effect to the said notice. The petition was heard by Banerjee, J., and three points were urged before him: (1) That the Income-tax Act, 1922 - hereinafter referred to as the 1922 Act - having been repealed by Income-tax Act, 1961- hereinafter referred to as the 1961 Act - which came into force on April 1, l962, the Commissioner of Income-tax had no power, authority or jurisdiction to initiate the proceedings under Section 33B of the 1922 Act; (2) Section 6 of the General Clauses Act in no way authorises the initiation of the said proceedings inasmuch as no steps were taken in respect thereof when the 1922 Act was in force and/or prior to its repeal; and (3) The powers under Section 298 of the 1961 Act can only be exercised in respect of the matters dealt with by Section 287 of the 1961 Act which does not deal with proceedings under Section 33B of the 1922 Act. (2) In order to appreciate the grounds and the findings of the learned Judge, it is necessary to set out relevant statutory provisions. "Section 33B (1922 Act) . Power of Commissioner to revise Income - tax Officer's orders. - (1) The Commissioner may call for and examine the record of any proceeding under this Act and if he considers that any order passed therein by the Income-tax Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such enquiry- as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. (2) No order shall be made under subsection (1) (a) to revise an order of re-assessment made under the provisions of section 34, or (b) after the expiry of two years from the' date of the order sought to be revised........." "Section 297 (1961) Act. Repeals and savings.- (1) The Indian Income-tax Act, 11 of 1922, is hereby repealed. (2) Notwithstanding the repeal of the Indian Income-tax Act 11 of 1922 (hereinafter referred to as the repealed Act) ,- (a) where a return of income has been filed before the commencement of this Act by any person for any assessment year, proceedings for the assessment of that person for that year may be taken and continued as if this Act had not been passed; (b) where a return of income is filed after the commencement of this Act otherwise than in pursuance of a notice under section 34 of the repealed Act by any person for the assessment year ending on the 31st day of March, 1962, or any earlier year the assessment of that person for that year -shall be made in accordance with the procedure specified in this Act; (c) any proceeding pending on the commencement of this Act before any income-tax authority, the appellate tribunal or any court, by way of appeal, reference or revision, shall be continued and disposed of as if this Act had not been passed; (d) where in respect of any assessment year after the year ending on the 31st day of March, 1940,- (i) a notice under section 34 of the repealed Act had been issued before the commencement of this Act, the proceedings in pursuance of such notice may be continued and disposed of as if this Act had not been passed; (ii) any income chargeable to tax had escaped assessment within the meaning of that expression in section 147 and no proceedings under section 34 of the repealed Act in respect of any such income are pending at the commencement of this Act, a notice under Section 148 may, subject to the provisions contained in Section 149 or section 150, be issued with respect to that assessment year and all the provisions of this Act shall apply accordingly; (e) section 23A of the repealed Act shall continue to have effect in relation to the assessment of any company or its shareholders for the assessment year ending on the 31st day of March, 1962, or any earlier year, and the provisions of the repealed Act shall apply to all matters arising out of such assessment as fully and effectually as if this Act had not been passed; (f) any proceeding for the imposition of a penalty in respect of any assessment completed before the 1st day of April, 1962, may be initiated and any such penalty may be imposed as if this Act had not been passed; (g) any proceeding for the imposition of a penalty in respect of any assessment for the year ending on the 3lst day of March 1962, or any earlier year, which is completed on or after the 1st day of April, 1962, may be initiated and any such penalty may he imposed under this Act; (h) any election or declaration made or option exercised by an assessee under any provision of the repealed Act and in force immediately before the commencement of this Act shall be deemed to have been an election or declaration made or option exercised under the corresponding provision of this Act; (i) where, in respect of any assessment completed before the commencement of this Act, a refund falls due after such commencement or default is made after such commencement in the payment of any sum due under such completed assessment' the provisions of this Act relating to interest payable by the Central Government on refunds and interest payable by the assessee for default apply: (j) any sum payable by way of income-tax, super-tax, interest, penalty or otherwise under the repealed Act may be recovered under this Act, but with out prejudice to any action already taken for the recovery of such sum under the repealed Act; (k) any agreement entered into, appointment made, approval given, recognition granted, direction. Instruction, notification, order or rule issued under any provision of the repealed Act shall, so far as it is not inconsistent with the corresponding provision of this Act, be deemed to have been entered into, made, granted, given or issued under the corresponding provision aforesaid and shall continue in force accordingly; (1) any notification issued under subsection (1) of section 60 of the repealed Act and in force immediately before the commencement of this Act shall, to the extent to which provision has not been made under this Act, continue in force until rescinded by the Central Government; (m) where the period prescribed for any application, appeal, reference or revision under the repealed Act had expired on or before the commencement of this Act, nothing in the Act shall be construed as enabling any such application, appeal, reference or revision to be made under this Act by reason only of the fact that a longer period therefor is prescribed or provision is made for extension of time in suitable cases by the appropriate authority." "S. 298 (1961 Act) . Power to remove difficulties. - (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by general or special order, do anything not inconsistent with such provisions which appears to it to be necessary or expeditious for the purpose of removing the difficulty. (2) In particular, and without prejudice to the generality of the foregoing power, any such order may provide for the adaptations or modifications subject to which the repealed Act shall apply in relation to the assessments for the assessment year ending on the 3lst day of March, 1962, or any earlier year." "S. 6. (The General Clauses Act) .-Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not 3. In exercise of the powers conferred under Section 298, the Central Government issued the Income-tax (Removal of Difficulties) Order, 1962, which was published in the Gazette of India on August 8, 1962. Clauses 2, 3 and 4 of the said order read as follows: "2. Registration and Refund proceedings to be regarded as-part of Assessment Proceedings.- For the purposes of Clauses (a) and (b) of sub-section. (2) of section 297 of the Income-tax Act, 1961 (43 of 1961) (hereinafter referred to as the repealing Act) , proceedings relating to registration of a firm or a claim for refund of tax shall be regarded as a part of the proceedings for the assessment of the person concerned for the relevant assessment year. 3. Completion of assessments in cases covered by section 297 (2) (b) of the repealing Act.-In cases covered by clause (b) of sub-section (2) of Section 297 of the repealing Act, the assessments shall be made, inter alia, in accordance with the procedure specified in the following sections of the repealing Act in so far as they may be relevant for this purpose; Sections 131 to 136, 140 to 146, 153 [except sub-section (2) and clause (iii) of sub-section (3) ], 156 to 158, 185, 187 to 189, 284 to 284 and 288. 4. Appeal, reference or revision proceedings in respect of orders passed under the repealed Act.-(1) Proceedings by way of the first or subsequent appeals, reference or revision in respect of any order made under the Indian Income-tax Act, 1922 (11 of 1922) (hereinafter referred to as the repealed Act) shall be instituted and disposed of as if the repealing Act had not been passed; (2) Any such proceedings instituted under the repealing Act after the 31st day of March, 1962, and before the date of this Order shall be deemed to have been instituted under the repealed Act and shall be disposed of as if the repealing Act had not been passed: Provided that if any such proceeding has been disposed of before the date of this Order under any provision of the repealing Act, it shall be deemed to have been disposed of under the corresponding provision of the repealed Act and any appeal, reference or revision in respect of the proceeding so disposed of shall be instituted and disposed of as if the repealing Act had not been passed." ;