- (1.) THIS is an application by an assessee Seth Kanhaiya Lal under Section 66(3) of the Indian Income-tax Act praying that this Court should require the Commissioner to state a case and refer the same to us after formulating certain questions for our decision. The learned Commissioner refused to state a case on the ground that the questions on which reference was sought did not arise out of the appellate order of the Assistant Commissioner.
(2.) THE facts may now be stated. THE assessment year with which we are concerned is 1934-35, and on April 3, 1934 the Additional Income-tax Officer of Meerut issued a notice under Section 22(2) to the assessee asking him to submit a return. THE return was submitted in June 1934, but by an application in September 1935 the assessee objected to the jurisdiction of the Income-tax Officer of Meerut. A question about the place of assessment thus arose within the meaning of Section 64(3) of the Act and the Income-tax Officer referred the matter to the Commissioner of Central and United Provinces for determination. THE Commissioner by an order dated October 21, 1935 asked the Income-tax Officer to obtain an affidavit from the assessee and an affidavit containing all the statements upon which the assessee objected to being assessed in the United Provinces was given. THE contention of Seth Kanhaiya Lal was that the principal place of business and his residence was in Calcutta and he should, therefore, be assessed there. THE Commissioner of Income-tax, Central and United Provinces, then entered into correspondence with the Commissioner of Bengal and it was ultimately decided that so far as assessment of 1934-35 and 1935-36 were concerned, they should be completed in the United Provinces at Meerut and assessments thereafter beginning from 1936-37 should be made in Calcutta. THEre was some misunderstanding by the Income-tax Officer of Meerut and he seems to have transmitted the records for the years 1934-35 and 1935-36 to Calcutta, but the Income-tax Officer of Calcutta drew the attention of the Meerut Officer to the agreed orders passed by the Commissioners of the two Provinces and requested him to proceed with the assessments for the years 1934-35 and 1935-36. The Income-tax Officer of Meerut then became apprised of the correct situation and proceeded with the assessment of 1934-35. The assessee continued to object to the jurisdiction of the Meerut Income-tax Officer, but the assessment for 1934-35 was completed on June 23, 1937. There was an appeal to the Assistant Commissioner and amongst other points which dealt with the amount of the tax a point was taken regarding the jurisdiction of the Income-tax Officer of Meerut. The Assistant Commissioner on this latter point after stating the entire proceedings by which the question of the place of assessment was ultimately determined observed, In fact no fresh proceedings under Section 64 were needed afterwards and if the appellant has any grievance in this respect, I cannot adjudicate upon it as no appeal is provided by Section 30 of the Income-tax Act against any order under Section 64." It is clear that the Assistant Commissioner was of the opinon that an appeal to him on a question of jurisdiction was incompetent. He then proceeded to dispose of the other questions raised in the appeal and dismissed the same.
(3.) THERE was then, as is usual in cases of this kind, application to the Commissioner under Section 33 of the Act and an application requesting the Commissioner to state a case under Section 66(2) of the Act. The learned Commissioner refused to give any relief under Section 33 of the Act and has referred one question of law for our decision arising out of the appellate order of the Assistant Commissioner as regards the amount of the assessment (connected Miscellaneous Case No. 409 of 1938) but has refused to refer any questions as regards the jurisdiction of the Income-tax Officer, being of the opinion that as no appeal is provided under Section 30 against an order passed under 64, the said questions did not arise out of the appellate order of the Assistant Commissioner, and, as such, they could not form the subject of reference to the Honble the High Court under Section 66(2). By this application it is contended before us that this decision of the Commissioner is not correct and that we should, therefore, ask him to state a case on the point of jurisdiction also. From the facts which we have given above, it is clear that the assessee before assessment questioned the jurisdiction of the Income-tax Officer of Meerut and that Officer rightly referred the question to his Commissioner, and then the Commissioner obtained from the assessee an affidavit in support of the objections of the assessee and ultimately in consultation and in agreement with the Commissioner of Bengal decided the question of the place of assessment. The question, therefore, was decided in strict conformity with Section 64(3) of the Act, and we hold the view that the matter has become final and we are not competent under Section 66 to interfere with that decision.;