- (1.) Section 297 of the Income-tax Act 1961, which repeals the Income-tax Act 1922 with certain savings, poses a problem, which need be worked out in this Rule.
(2.) It is necessary for me, at the outset, to set out the circumstances in which he problem arises in this Rule. The petitioner is an assessee to income-tax. In the month of January, 1961, the petitioner filed returns of her income for the assessment years 1952-53 to 1960-61. The respondent Income-tax Officer found that the principal sources of income of the petitioner comprised of interest on certain investments and profit from speculations in shares and silver as also from other miscellaneous sources. On the above sources of income, the respondent Income-tax Officer assessed the petitioner on income computed at: (a) Rs. 12,150/- for the assessment year 1952-53 (b) Rs. 5,045/- for the assessment year 1953-54 (c) Rs. 6,760/- for the assessment year 1 954-55 (d) Rs. 5,760/- for the assessment year 1955-56 (e) Rs. 5,350/- for the assessment year 1956-57 (f) Rs. 5,460/- for the assessment year 1957-58 (g) Rs. 6,170/- for the assessment year 1958-59 (h) Rs. 6,930/- for the assessment year 959-60 (i) Rs. 7,315/- for the assessment year 1960-61 and issued notice of demand for payment of tax thereon. The assessment orders all bear the date February 7, 1961.
(3.) On or about January 25, 1963, the petitioner was served with several notices, in which it was stated that the respondent Commissioner of Income-tax examined the records of the petitioner's assessment cases for the years 1952-53 to 1960-61 and other connected records and that it appeared to him that the orders of assessment made by the respondent Income-tax Officer were erroneous and prejudicial to revenue on the following amongst other reasons: "Enquiries made have 'revealed that no business as alleged was carried on from the address declared in the returns. The Income-tax Officer was not justified in accepting the initial capital, the acquisition and sale of jewellery, the income from business and gift made by the petitioner etc., without any enquiry or evidence." In the said notices it was further stated that the respondent Commissioner proposed to pass orders enhancing or modifying the assessments or cancelling the assessments and directing fresh assessments in exercise of the powers vested in him under Section 33B of the Income-tax Act, 1922. Section 33B of the Income-tax Act, 1922, in so far material for this Rule, is set out below: "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) to (4) x x x x x x x" Since prior to the issue of the notices, the Income-tax Act, 1922 had been repealed, with effect from April 1, 1962, by the Income-tax Act1961, the petitioner caused her attorneys, Messrs. Khaitan and Co., to write to the respondent Commissioner disputing the validity of the notices, firstly, on the ground of repeal of the Income-tax Act of 1922 and, secondly, on the ground of vagueness in the notices in that there was no indication as to how the previous assessments were erroneous or prejudicial to revenue. Since the respondent Commissioner did not indicate his willingness to recall the notices, the petitioner moved this Court, under Article 226 of the Constitution, praying for a Writ in the nature of Certiorari for the quashing of the notices and for a Writ in the nature of Mandamus directing the respondent Commissioner to recall, cancel or withdraw the said notices and obtained this Rule. The Rule was issued on three limited grounds, hereinbelow set out: "(a) The First Act having been repealed by the Second Act which came into force on the 1st April, 1962, the respondent No. 1 had no power, authority or jurisdiction to initiate the said proceedings under Section 33B of the First Act. (b) 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 First Act was in force and/or prior to its repeal. (c) The powers under Section 298 of the Second Act can only be exercised in respect of the matters dealt with by Section 297 of the Second Act, which does not deal with proceedings under Section 33-B of the First Act at all.";