S.C. Mathur, J. - (1.) AN income-tax assessee whose assessment for the assessment year 1985-86 was completed by the Inspecting Assistant Commissioner of Income-tax (Assessment), Central Circle-I, Lucknow, respondent No. 1, has approached this court under Article 226 of the Constitution of India to challenge the said assessment on the ground that the officer lacked jurisdiction to make the assessment. In the description of respondent No. 1, the word "assistant" appears to have been wrongly used in place of "assessment" as from annexure-3 which is the impugned order, it appears that his correct designation is Inspecting Assistant Commissioner of Income-tax (Assessment), Central Circle I, Lucknow. The assessment was made on March 30, 1988. The petitioner admits that, against the impugned order, he has preferred an appeal under Section 246 of the Income-tax Act, 1961 (43 of 1961) (for short "the Act"), but he justifies the filing of the instant petition on the ground that the petitioner cannot raise the question of jurisdiction therein, a plea which is not disputed by learned counsel for the Income-tax Department ; according to him, the question cannot be raised even in the present proceedings. A few facts necessary for the disposal of the petition, may now be stated.
(2.) FOR the assessment year in question, the petitioner filed his return showing an annual income of Rs. 82,749. The assessment proceedings were pending before respondent No. 1 who passed an order on February 25, 1988, under Section 131(3) of the Act detaining certain books of account and documents for verification and another order on March 11, 1988, detaining certain vouchers under the same provision. The final order of assessment was passed, as stated earlier, on March 30, 1988, whereby the petitioner's income-tax was assessed at Rs. 15,05,580. Much prior to the passing of the earliest of the aforesaid three orders, the Central Board of Direct Taxes, New Delhi, for short "Board" passed an order dated December 31, 1987, under Section 127 of the Act, transferring the petitioner's assessment case from respondent No. 1 to E-Ward, Luck-now Circle, Lucknow ; a copy of this order is annexure-4. It is mentioned in the order that the same shall take effect from January 20, 1988. Now, the submission of learned counsel for the petitioner is that, in view of the above transfer order, respondent No. 1 ceased to have jurisdiction to deal with his assessment case with effect from January 20, 1988, and, therefore, the order of assessment passed on March 30, 1988, is without jurisdiction.
(3.) IN the counter-affidavit filed on behalf of the respondent, the facts stated hereinabove have not been contravened. It has however been stated that, although the Board passed the order of transfer at Delhi on December 31, 1987, it was issued from Delhi only on March 25, 1988, and was received at Kanpur on March 30, 1988, wherefrom it was endorsed to various officers including the office of respondent No, 1 with its endorsement dated April 12, 1988, and the endorsement with the copy of the transfer order was received in the office of respondent No. 1 on April 19, 1988. It is asserted that the transfer order operates from the date it is communicated and since, much prior to that date, the assessment proceedings had been completed, it was an infructuous order. Section 124 of the Act is relied upon for submitting that the plea of lack of jurisdiction cannot be raised after the completion of the assessment ; the writ petition is alleged to be not maintainable as the petitioner has availed of the alternative remedy of appeal. Learned counsel for the petitioner has tried to draw a distinction between an order of transfer which does not fix a date for its coming into effect and an order which fixes such a date. According to him, in the former case, the transfer order may take effect from the date of communication but, in the latter case, it will have to take effect from the date mentioned in the order, otherwise the fixation of date would become meaningless.;