GENTLE, J. - (1.) THE applicant is the receiver appointed by this Court in respect of the assets of a business which was conducted in the name of M/s P.M. Bagchi & Co. THEre are several branches of this business at various places in Calcutta including one at No. 19 and 19/1, Gulu Ostagar Lane, and another at No. 14, Clive Street, Calcutta ; the former is within the area of the ITO of District No. 1 (2) and the latter within the area of the ITO of District No. 5. It is said that the principal place of business was at Gulu Ostagar Lane, Calcutta. Proceedings having been taken with respect to this business of which, at one time, a man named Panchanan Bagchi was the sole proprietor and the applicant having been appointed receiver, he entered upon his duties and took possession of the assets on the 18th July, 1935.
(2.) IN this matter before us, the CIT, Calcutta, is showing cause against a rule nisi granted by this Court on the 12th Jan., 1944, requiring the Tribunal to refer to this Court certain questions which the applicant alleges arose out of its decision with regard to the assessment of the profits of the business for the year 1935-36. The questions with which the rule nisi is concerned relate to the notice given under ss. 34/22(2) of the INdian IT Act and to the assessment made upon the notice. There also arises, in connection with those questions, consideration of the transfer by one ITO to another officer of the file relating to the assessment of the profits of the business. Originally, the ITO of District No. 1(2) had in his jurisdiction the assessment of the profits of the business. This, it is stated was because the business premises in that District were the principal place of business. In October, 1935, after the present applicant became receiver, the ITO of District No. 1(2) was requested by Mr. J.R. Roy, a pleader, to transfer the income-tax matters relating to the business to District No. 5. Mr. J.R. Roy at that time was instructed by Mr. Panchanan Bagchi who at one period was in control of the business. On the 23rd July, 1936, the officer of the District No. 5 issued a notice under s. 34/22(2) in respect of the profits of the business; it was, in fact, issued upon the HUF known as P.M. Bagchi & Co. This notice required a return to be made in respect of the profits of the business which should have been assessed during the year 1935-36. Nothing seems to have been done, although apparently reminders or notices were sent by the ITO until the 20th Jan., 1937, when the applicant wrote to the ITO of District No. 5 acknowledging a post-card and stating that his office was at No. 19 and 19/1, Gulu Ostagar Lane, Calcutta, where all the accounts were kept and books of account were being produced to the ITO of District No. 1 (2). In view of those circumstances, the applicant requested a transfer of the pending case to District No. 1(2) for his convenience. This transfer was effected and the file was sent to District No. 1(2). On the 22nd June, 1939, the Addl. ITO of that District made an assessment against which the applicant appealed to the Tribunal and in respect of which the present matter arises. It was contended that the two transfers, firstly, from District No. 1(2) to District No. 5 and, later, from District No. 5 back to District No. 1(2), were without authority and invalid; consequently, the notice given under ss. 34/22(2) by the ItO of District No. 5 was bad and invalid, and further that the assessment subsequently made by the Addl. ItO of District No. 1(2) could not stand, since it was made, firstly, upon an invalid notices, secondly, without any notice having been given, and thirdly, by an officer who had no jurisdiction to make the assessment, and it was also faintly suggested that the notice issued by the officer of District No. 5 was a bad notice as it was addressed to an HUF.
(3.) THE principal argument arises upon the provisions of s. 64 of the Indian IT Act. THEse are as follows : "(1) Where an assessee carries on a business,.......at any place, he shall be assessed by the ITO of the area in which that place is situate or, where the business......is carried on in more places than one, by the ITO of the area in which the principal place of his business,............is situate. (3) Where any question arises under this section as to the place of assessment, such question shall be determined by the Commissioner....... (4) Notwithstanding anything contained in this section, every ITO shall have all the powers conferred by or under this Act on an ITO in respect of any income, profits or gains accruing, or arising or received within the area for which he is appointed." It was argued that since the principal place of business was at the address within the area of District No. 1(2), the ITO of that District alone had jurisdiction to give notice under s. 34 of the IT Act and also that s. 64 in no way allows a transfer of the file from one officer to another, save when such transfer is made by the Commissioner. The effect of s. 64 and its sub-sections has been considered in In re, Bisheshwar Nath & Co. (1942) 10 ITR 108 (All), a decision by the Allahabad High Court. It was there held that the effect of sub-ss. (1) and (4) of s. 64 is that, where two or more ITOs have territorial jurisdiction in respect of the same income, they exercise concurrent jurisdiction in the matter of issuing notices to the assessee and where notices have been issued by one officer it is unnecessary for the other officer to issue the same notices again. Sub-s. (3) of s. 64 applies only when a question arises as to the place of assessment and when there is no dispute between the assessee and the ITO as to the proper place of assessment the point need not be referred to the Commissioner under that sub-section.;