Appeals Nos 384 and 385 of 1957
Appeal by special leave from the Order dated November 28 1952 of the Income tax Appellate 303 Tribunal Calcutta Bench in ITA No 4067 and EPT Appeal No 391 of 1951 52
N C Chatterjee B Sen Gupta and B P Maheshwari for the appellant
K N Rajagopala Sastri R H Dhebar and D Gupta for the respondents
March 2
The Judgment of the Court was delivered by KAPUR J
These two appeals pursuant to special leave are brought against two orders of the Incometax Appellate Tribunal Calcutta Bench dated November 28 1952 passed in appeal No 1
T A 4067 of 1951 52 in respect of income tax assessment for the assessment year ending 31st March 1944 and in appeal No E P T A 391 of 1951 52 in respect of Excess Profits tax assessment of the appellant for the chargeable accounting period ending March 31 1943
The original assessee was R B Seth Teomal who was the manager of a Hindu undivided family
On Seth Teomal s death on May 30 1944 Seth Ottanmal became the manager
He is now the appellant representing the Hindu undivided family
He will be termed as the appellant in these appeals
Seth Teomal was carrying on the businesss of a railway contractor at Lalmonirhat in the district of Rangpur which is now in Pakistan
In April 1943 a notice was served on him under section 222 of the Income tax Act hereinafter called the Act
He filed the return on February 28 1944
The Income tax OfficerRangpur served notices on him under sections 224 and 232 for production of books etc
It appears that assessment proceedings continued before the Income tax Officer Rangpur but no final assessment was made
According to an affidavit which has now been filed in this Court the Central Board of Revenue by an order passed under sub section
2 of section 5 of the Act assigned the appellant s case along with some other assessment cases to the Commissioner of Income tax Central Calcutta
The order contains the following endorsements which give an indication of the reason for the case being assigned to the Commissioner of Income
tax Central 304  Copy forwarded to 1          2 Commissioner of Income tax Central Calcutta
These cases are reported to have E P T liabilities 
Thus the appellant s case which was before an incometax Officer within the area in charge of the Commissioner of Income tax Bengal Mofissil was withdrawn from him and was assigned to the Commissioner of Income tax Central Calcutta
On February 11 1948 the Income tax Officer District N C I T cum EPT to whom it appears the appellant s assessment case was assigned issued notice again under sections 224 and 232 of the Act
That officer after making the usual enquiries made the assessment order on March 15 1948
The order for Excess Profits Tax assessment was made on March 301948
Against these orders two appeals were taken to the Appellate Assistant Commissioner on April 30 1948
In the appeal against income tax assessment the appellant inter alia raised the following two grounds in regard to the jurisdiction of the Income tax Officer Calcutta  5
For that the petitioner is not aware of any order passed for the transfer of the case from Rangpur to Calcutta and it is submitted that without such an order and communication of such order the assessment is challengeable for want of jurisdiction 
For that the appellants challenge the jurisdiction as there was no proper order of transfer and the business was carried on outside Calcutta and assessments had never before been made in Calcutta
But no such ground was taken in the appeal against Excess Profits Tax assessment
The Appellate Assistant Commissioner dismissed both these appeals
In regard to jurisdiction he held  It however appears from records on band that the principal place of business of the concern was at Rangpur and as the income attracted E P T liability the case was transferred to Calcutta under Orders of C B R
Hence there is no substance in the contention of the learned Advocate which fails 305 The appellant then took two appeals to the Incometax Appellate Tribunal
In the appeal against incometax assessment he took two objections in regard to jurisdiction   For that the objection taken before the learned A A C on jurisdiction should not have been summarily disposed of by passing reference to an order of transfer of the case from Rangpur to Calcutta without at the same time discussing when the question of jurisdiction was seriously raised and how and under what circumstances and to whom was the case transferred and for what purpose  2
For that the appellant begs leave to repeat that transfer was not legal or proper and was not made by any proper authority to legalise such transfer 
In the Excess Profits Tax appeal also this time an objection was taken as to jurisdiction   For that the assessment is bad in law having been made without jurisdiction 
The Appellate Tribunal held against the appellant in a short paragraph  So far as the first objection is concerned in our opinion it is not within our jurisdiction to go into this matter
The objection relates to the place of assessment
As held in Brothers  Co Ltd vs Commissioner of Income tax Bombay Sind and Baluchistan Federal Court the question as to the proper place of assessment is not one for adjudication by a Court or by any Appellate Authority
Consequently we overrule the first contention of the Assessee
 The Tribunal thus held that as the objection related to the place of assessment the Tribunal was not competent to go into that question
Upon this the appellant applied for a reference to be made under section 661 of the Act and prayed for five questions to be referred
The two questions relating to jurisdiction were 1 Had the Income tax Officer Non Companies Income tax cum Excess Profits Tax  District Calcutta jurisdiction to make the assessment  39 306 2Was the Income tax Appellate Tribunal correct in the circumstances in holding that it has no jurisdiction to determine the competence of the Income tax Officer in making the assessment  In the  facts of the case  attached to the grounds of Appeal it was stated that the accounts were produced before the Income tax Officer Calcutta under protest because the jurisdiction of that officer was being challenged
In reply to this the Commissioner after referring to Wallace Brothers  case 1 stated that it did not appear from the assessment record that the assessee ever raised any objection to the jurisdiction of the Income tax Officer and if it had been taken the matter would have been referred by the Income tax Officer to the Commissioner as required by law
This application under section 661 was dismissed on the ground that the question of jurisdiction could not arise out of the order of Tribunal and reliance was placed on Wallace Brothers  case 1 and Seth Kanhaiyalal vs Commissioner of Income tax 2 
The appellant applied to the High Court under section 66 2 of the Act and prayed for the following two questions and some others to be referred  i Had the Income tax Officer N C 1
T Cum E P T District Calcutta jurisdiction to make the assessment  iiWas the Income tax Appellate Tribunal correct in the circumstances in holding that it had no jurisdiction to determine the competence of the Income tax Officer in making the assessment The High Court dismissed this application on July 23 1954
No appeal has been filed in this Court against the order of the High Court but an appeal has been filed against the order passed by the Income tax Appellate Tribunal
On behalf of the Revenue a preliminary objection was taken that as no appeal had been filed against the order of the High Court that order had become final and this Court therefore should not entertain the appeal against the order of the Tribunal and reliance was placed on the observations of Venkatarama 1  2 307 Aiyar J in Govinda Rajulu Mudaliar vs Commissioner of Income tax 1
At p 810 it was observed  The present appeal is against the decision of the Tribunal itself It is no doubt true that this Court has decided in Dhakeswari Cotton Mills Ltd vs Commissioner of Income tax West Bengal 2 that an appeal lies under article 136 of the Constitution of India to this court against a decision of the Appellate Tribunal under the Indian Income tax Act
But seeing that in this case the appellant had moved the High Court and a decision has been pronounced adverse to him and this has become final obviously it would not be open to him to question the correctness of the decision of the Tribunal on grounds which might have been taken in an appeal against the judgment of the High Court
All the points urged before us were taken in the reference under section 66 2 of the Indian Income tax Act
It would therefore follow that these grounds are not open to the appellant
But counsel for the appellant relied on Dhakeswari Cotton Mills Ltd vs Commissioner of Income tax 2 where the scope of appeals under article 136 were set out by the learned Chief Justice
In this case however it is not necessary to go into this question because in our opinion there is little substance in the appeal itself
Counsel for the appellant has urged two grounds in support of his appeal 1 that his place of business was Lalmonirhat and under section 64 1 and 2 of the Act he was entitled to be assessed by the Income tax Officer of that area and 2 that assessment by the Income tax Officer of Calcutta was an illegal assumption of jurisdiction and therefore he was entitled to have the order of assessment quashed
In order to decide these questions reference has to be made to the scheme
of the Act
The provisions relevant to the issue of jurisdiction are sections 5 and 64
The former is headed  Income tax authorities  and the latter  Place of assessment 
Assessment is made by the Income tax Officer under section 23 3
Against an order of assessment or the liability to be assessed an appeal 1  810
2   949
308 lies under section 30 to the Appellate Assistant Commissioner and a further appeal to Income tax Appellate Tribunal under section 33 of the Act
And then a reference can be made by the Tribunal to the High Court under section 66 1 of the Act and if the Tribunal does not make such reference the High Court can under section 66 2 be moved and it can then direct that such reference be made
The heading of section 64 is  Place of assessment 
Sub section 1 of section 64 provides that the assessee shall be assessed by the Income tax Officer of the area in which he carries on his business
Sub section 2 lays down that in all other cases an assessee shall be assessed by the Income tax Officer of the area in which he resides
Under these two sub sections therefore the appellant because he was carrying on business at Lalmonirhat had to be assessed by the Income tax Officer of that area ie by the Income tax Officer of Rangpur
Sub section 3 of that section provides that if a question as to the place of assessment arises it is to be determined by the Commissioner of Income tax or by Central Board of Revenue according as the case may be
Under the first proviso to this sub section before the question as to the place of assessment is determined the assessee has to have an opportunity of representing his views and under the second proviso the place of assessment cannot be called into question by the assessee if he has made a return in response to the notice under sub section
1 of section 22 and has stated therein the principal place where he carries on his business or if he has not made such a return the time specified in the notice has expired
The third proviso to this subsection is  Provided further that if the place of assessment is called in question by an assessee the Income Tax Officer shall if Dot satisfied with the correctness of the claim refer the matter for determination under this sub section before assessment is made 
Thus under section 643 the question of determination as to the place of assessment only arises if an objection is taken by the assessee and the Income Tax Officer has any doubts as to the matter
But the determination 309 is to be by the Commissioner of Income Tax or the Central Board of Revenue
The Act does not contemplate any other authority
It was contended on behalf of the assessee that he produced his accounts before the Income Tax Officer at Calcutta under protest
There is no mention of this protest in the assessment file and that is what was stated by the Commissioner of Income Tax in his reply which he gave on March 3 1953 before the Income tax Appellate Tribunal and which has been set out above
If such an objection had been raised the question would have been referred by the Income tax Officer to the Commissioner as required under section 643
That stage never arose because the objection does not seem to have been taken at the stage when it should have been taken ie before the Income tax Officer Calcutta
But it is contended by counsel for the appellant that in the present case there is an illegal assumption of jurisdiction as the officer who made the assessment had no jurisdiction at all to make the assessment
It was also contended that if the Central Board of Revenue wanted to transfer the assessment proceedings from the Income tax Officer Rangpur to the Income tax Officer at Calcutta it could only exercise that jurisdiction by making an order under section 57A and not under section 52 of the Act
He relied on Taylor vs Taylor 1 where it was held that if a mode of exercise of power is laid down in the statute it has to be exercised in that way and no other
He also relied on Nazir Ahmad vs The King Emperor 2
He further contended that this was not a case which fell under section 52 of the Act
Section 57A gives to the Central Board of Revenue the power to transfer any case from one Income tax Officer to another which can be mad6 at any stage of the proceedings and does not necessitate the reissuing of a notice under section 222 if it had already been issued by the Income tax Officer from whom the case is transferred and in the explanation the word  case  in relation to any person whose name is specified in the order of transfer means 1  431 2 1936 LR 63 IA 372
310 all proceedings under the Act which may be pending on the date of the transfer and includes all proceedings which may be commenced after the date of the transfer
Section 5 although headed I Income tax authorities  also gives to the Central Board of Revenue and the Commissioners of Income tax certain powers in regard to withdrawing of cases from one area into other and from one Income tax Officer to another
Sub section 2 of this section gives power to the Central Government to appoint as many Commis sioner s of Income tax as it thinks fit and they have to perform their functions in respect of different areas persons and bases or classes thereof
The relevant portion of the sub section is as follows S52  The Central Government may appoint as many Commissioners of Income tax as it thinks fit and they shall perform their functions in respect of such areas or of such persons or classes of persons or of such incomes or classes of incomes or of such cases or classes of cases as the Central Board of Revenue may direct    In the present case there are more than one Commissioner of Income tax in Bengal and the Central Board of Revenue assigned certain cases including the case of the appellant to the Commissioner of Income tax Central at Calcutta for the exercise of his functions as Commissioner
Now this is a power which the Central Board of Revenue did possess under sub section
2 of section 5
As to which Income tax Officer was to deal with that case was for the Commissioner of Incometax to designate
Sub section 7A of section 5 confers on the Central Board of Revenue the power to transfer any case from one Income tax Officer to the other which can be done at any state of the proceedings
This sub section is not a provision which in any way modifies or cuts down the power given to the Central Board of Revenue under section 52
The two sub sections are complementary and operate in two separate spheres
Sub section 2 is for the purpose of specifying as to which of the Commissioners would perform functions in respect of 311 different areas persons incomes or cases or classes thereof
It was argued that section 7A is a special provision and it necessarily excludes the operation of sub section
2 but as we have said above the two sections are not mutually exclusive
They operate in two different spheres their areas of operation are different and therefore the power which the Central Board of Revenue exercised in the present case cannot be said to be illegal 
It was not transferring the appellant s case from the Income tax Officer Rangpur to the Income tax Officer Calcutta
It directed the Commissioner of Incometax Central Calcutta to exercise his functions in respect of certain cases including the case of the appellant and that falls under section 52 and not under section 57A
Reference was made to Pannalal Binjraj vs Union of India 1
But that was a case in which the question raised was of constitutional validity of sub section
7A of section 5 and it was held that it was a measure of administrative convenience and was valid and neither infringed the fundamental rights under article 14 nor under article 191g
There are no observations in that case which militate against the view that sub sections 2  7A operate in different areas nor did that question arise in that case
The contention there raised was that sub section
7A conferred arbitrary and uncontrolled powers of transfer and was discriminatory and violative of the provisions of article 14 and imposed an unreasonable restriction on the right to carry on trade or business in contravention of article 19 1g
Counsel referred to Bidi Supply Co vs Union of India 2 But that case also does not deal with the matter now before us
The simple question to be decided is whether the Income tax Officer Calcutta could make the assessment in the appellant s case
The submission that there was illegal assumption of jurisdiction by the Income tax Officer of Calcutta is not well founded
If the Central Board of Revenue had the power to direct the Commissioner of Incometax Central Calcutta to exercise his functions in 1   266
2  312 respect of several cases including the appellant s mentioned in the order dated November 29 1946 as indeed it had under section 52 then neither that order could be challenged nor the power of the Income tax Officer Calcutta to make the assessment
After an order by the Central Board of Revenue under section 52 of the Act the provisions of sub sections
1 and 2 of section 64 have no application because of sub section
5a of section 64 which is as follows  Sub section
5  The provisions of sub section 1 and subsection 2 shall not apply and shall be deemed never at any time to have applied to any assessee aon whom an assessment or reassessment for the purposes of this Act has been is being or is to be made in the course of any case in respect of which a Commissioner of Income tax appointed without reference to area under sub section 2 of section 5 is exercising the functions of a Commissioner of Income tax
In view of this provision no objection can be taken on the ground of sub sections 1 and 2 of section 64
Counsel for the appellant relied on a judgment of the Bombay High Court in Dayaldas Kushiram vs Commissioner of Income tax Central 1 where it was held that section 64 was intended to ensure that as far as practicable the assessee should be assessed locally i e by the Income tax Officer of the area in which the assessee carries on business and there must so far as the exigencies of the case allow be some reasonable relation to the place where the assessee carries on business or resides
In that case the assessee was carrying on business in C Ward and the proper officer under section 64 to assess him was the Income tax Officer of that Ward
As a result of the coming into force of section 52 the Commissioner of Income tax Central was created without reference to the area
The case of the assessee on whom the notice had been served but had not been assessed in due course assigned to the Commissioner of Income tax Central who designated an Income tax Officer for assessment of the assessee
The assessee thereupon made an application under section 45 of 11939 313 the Specific Relief Act and prayed for direction to the Commissioner of Income tax Central and the Incometax Officer to whom his case had been assigned to forbear from continuing the proceedings on the grounds that the Income tax Officer had no jurisdiction having regard to section 64 of the Act
It was held that the Income tax Officer was not the Income tax Officer of the area in which the assessee was carrying on business
It was also held that in spite of the insertion of section 52 of the Act such assessment was without jurisdiction because there was no amendment of section 64
As a result of this judgment Ordinance IX of 1939 was promulgated which subsequently was enacted as subs
5 of section 64
After the Ordinance the assessee Dayaldas Kushiram was assessed by the same Officer and after unsuccessful appeals to the Commissioner of Income tax and the Appellate Tribunal he made an application under section 661 on three questions 1 Whether the order passed by the Commissioner of Incometax deciding the place of assessment of the assessee could be the subject matter of appeal to the Incometax Appellate Tribunal 2 Whether the Tribunal had the power to entertain an appeal on the question as to the place of assessment of an assessee even in the absence of the order of Commissioner of Income tax and 3 whether the question as to the place of assessment is a question of law arising out of the order of the Appellate Tribunal
It was held that the order of the Commissioner was made under section 52 and not under section 643 and as the Ordinance had retrospective effect these questions did not arise and that the assessment of the assessee was validly made by the Income tax Officer and the Ordinance removed the invalidity of the orders made prior to the passing of the Ordinance so far as they related to the assessee
Beaumont C J held that the Income tax Act did not determine the place of assessment but the officer who had to assess and that there could be no appeal under the Act against the order of the Commissioner as to the place of assessment but only against the order of assessment of the Income tax Officer
40 314 Counsel for the appellant also relied on the judgment of the Allahabad High Court in Dina Nath Hem Raj vs Commissioner of Income tax 1
In that case the assessee was carrying on business at Calcutta and he was sought to be assessed at Kanpur and an objection was taken to the Income tax Officer Kanpur making the assessment
The Income tax Officer did not proceed in accordance with section 643 and therefore it was held that assessment made by him was without jurisdiction
In the present case no question has been raised as to the jurisdiction of the Income tax Officer who made the assessment and apart from that the order was made by the Central Board of Revenue under section 52 of the Act and section 645 becomes operative and sub sections
1 and 2 of section 64 are inoperative
See also Seth Kanhaiyalal vs Commissioner of Incometax 2
The question then arises whether the objection as to the place of assessment i e by the Income tax Officer of Calcutta could be challenged in appeal to the Appellate Assistant Commissioner and then before the Appellate Tribunal
In our opinion it could not be
The scheme of the Act shows that no appeal in regard to the objection to the place of assessment is contemplated under the Act
Under section 643 of the Act a question as to the place of assessment when it arises is determined by the Commissioner
Any such order cannot be made a ground of appeal to the Appellate Assistant Commissioner under section 30 of the Act which provides for appeals against orders of assessment and other orders enumerated in section 30 but no appeals is there provided against orders made under section 643
Similarly appeals to the Appellate Tribunal which lie under section 33 of the Act also do not provide for any appeal on the question of the place of assessment
In Wallace Brothers  case 3 at p 79 Spens C J after referring to section 643 and the proviso thereto said  These provisions clearly indicate that the matter is more one of administrative convenience than of 1 All 616
2 3 315 jurisdiction and in any event it is not one for adjudication by the Court  
This confirms us in the view that the scheme of the Act does not contemplate an objection as to the place of assessment being raised on an appeal against the assessment after the assessment has been made
As we have already pointed out the objection was not raised in the present case even before the Appellate Income tax Officer but only before the Appellate Tribunal 
There is nothing in the Bidi Supply case 1 which in any way detracts from the efficacy of the decision of the Federal Court in Wallace Brothers  case 2
We have already said that Bidi Supply case 1 deals with the vires of section 57A
In this view of the matter the question as to the place of assessment does not arise out of the order of the Income tax Appellate Tribunal and therefore no question of law could be referred nor could the High Court make such order under section 662
In our opinion the High Court rightly dismissed the appellant s application for directing the case to be stated under section 662 of the Act
The appeals therefore fail and are dismissed with costs
In the circumstances of the case there will be only one set of costs
Appeals dismissed


Summary:
The appellants in Civil Appeal No3012 of 1990 were Directors of a Company which was owning a Jute mill
Due to lock out and strike in the Jute industry the Company de faulted in the payment of the provident fund dues
The appellants applied under Section 633 of the for being relieved of liability for delayed as well as non payment of the provident fund and other ancillary dues
A Single Judge of the High Court passed a consent order allowing the outstanding provident fund dues to be paid in monthly instalments of Rs50000 each until the entire liability was paid oH As the Provident Fund authorities accepted this course summons were not served on the Regis trar of Companies since what was sought to be recovered were the dues under the Provident Fund Act
The Single Judge also granted an injunction restraining the respondents from initiating any criminal procccdings against 339 the appellants or any of them for non payment or delayed payment of the provident fund
On appeal by the Regional Provident Fund Commissioner the Division Bench held that any proceeding referred to in section 633 of the Act would mean only under the provisions of the Act and that section 633 of the Act had no applica tion in respect of any liability under any other Act
Hence the appeal
Applications claiming relief under section 633 were dismissed in the connected cases also resulting in the appeals and Special Leave Petition being filed before this Court
On behalf of the appellants in Civil Appeal No 3012 of 1990 it was contended that section 633 was very wide in its amplitude and there was no justification to restrict its application to only proceedings arising under the Act that when proceedings were taken in relation to breach of trust which was an offence under Indian Penal Code against an officer of a company it would be opentn him to plead before the concerned Magistrate that he had acted honestly and reasonably and if the Court came to the conclusion that he should fairly be excused it would relieve him that under sub section 2 it was an anticipatory action and the High Court also exercised a similar power as it was exercising power under subsection 1 and if it was restricted only in respect of any liability under the  then the protection extended under section 633 was last and that similarly under section 32 of the  which dealt with offences by Companies under that Act the burden was upon the person concerned to prove that the offences were committed without his knowledge or consent and but for that proof the statute deemed him to be guilty therefore if protection was not afforded against such a sweeping provision the entire purpose of Section 633 would be rendered nugatory
On behalf of the appellants in one of the connected appeals it was contended that the definition of Court contemplated with respect to any matter relating to a compa ny and that the Court having respective jurisdiction as provided under Section 211 was with respect to any offence under the Act the Court of a first class Magistrate or as the case may be a Presidency Magistrate having jurisdiction to try such offence that this section would show that where like the appellants they were not working directors they could not be subject to prosecution and that was where Section 633 stepped in and afforded protection even if it were a liability arising 340 under any other Act for instance like delayed payment or nonpayment of provident fund
On behalf of the respondent Regional Provident Fund Commissioner it was contended that any proceeding occurring under Section 633 could not relate to a proceeding other than one arising out of  that each one of the other Acts not only defined penalty but also laid down the penalty and therefore merely because the appellants were officers of the company it could not mean that section 633 could be availed of otherwise the consequences would be disastrous and the penal provision of all other Acts would be rendered ineffective that Section 14 of the laid down the penalty for the offences of companies and was dealt with in Section 14 A and the explanation to the said sec tion also talked of as to what a company would mean for the purpose of the section and therefore where an elaborate procedure was contemplated under those sections for recovery of the dues and the Provident Fund Act being a social welfare legislation that could not be rendered illusory by extending the benefit under Section 633 of the  similarly Section 86 of the Employees  State Insurance Act providing for prosecution also dealt with Companies and the explanation under that Section specifically stated as to what would be a Company or Director for the purpose of that section and hence no interference was called for
Dismissing the cases this Court HELD 11 Under Section 633 of the  relief cannot be extended in respect of any liability under any Act other than the 
354 C 12 The expression any proceeding  occurring under Section 633 cannot be read out of context and treated in isolation
It must be construed in the light of the penal provisions
Otherwise the penal clauses under the various other Acts would be rendered ineffective by application of Section 633
Again if Parliament intended Section 633 to have a coverage wider than the Act it would have specifi cally provided for it
Moreover it is a sound rule of construction to confine the provisions of a statute to itself
349 D E 13 While referring to any proceeding under sub section 2 of Section 633 the Parliament intended to restrict it only to the proceeding arising out of negligence default breach of trust misfeasance or breach of duty in respect of dutics prescribed under the provi 341 sions of the 
Further examining the sub section with reference to the context and the placement of the sub section the only conclusion that is possible is the proceedings for which relief under this sub section could be claimed or the proceedings against the officer of a company for breach of the provisions of the 
Sub section 2 cannot apply to proceedings instituted against the officer of the company to enforce the liability arising out of violation of provisions of other statutes
349 F G 14 Sub section 3 requires notice to be given to the Registrar of Companies
This indicates that powers under sub section 2 must be restricted in respect of proceedings arising out of the violation of the Companies Act 1349 H 15 Merely because section 32 of the contains a stringent provision it cannot be held that Section 633 of the Companies Act could be invoked for of fences under Section 32 of the Industrial Disputes Act
1354 D Customs and Exicise Comrs
vs Hedon Alpha LId
 2 ALL ER 697 CA
referred to
Halsbury s Laws of England Fourth Edition 71 Companies para 652 Pennington s Company law
4th Edn 1979 P548 23rd Edn 1982 Vol
I p 881 and 5th Edn
1985 p679 680 referred to
21 The authority to take action under the Provident Fund Act as seen from Section 14 of the said Act is a Com missioner while the procedure so far as the Companies Act is concerned under Section 621 it is on a complaint in writing of the Registrar or of a shareholder of a company or of an officer authorised by the Central Government in this behalf that action can be taken
Since ii is mandatory for the Court to givc notice to the Registrar of Companies or such other person if any as it thinks necessary
as required under sub section 3 of Section 633 if Section 633 is interpreted so as to include proceedings under Acts other than the Companies Act it will be open to the Court to give such relief under this Section without giving notice to the authority competent to prose cute in respect of liabilities under the other laws or upon giving notice to other concerned and not the Registrar
Thus the mandatory requirement of sub section 3 can easily be bye passed
Further if relief under Section 633 is extended officers who would be deemed to have committed the offence under Section 14 A of the 342 Provident Fund Act because sub section 1 states that every person who was responsible to the company as well as the company shall be deemed to be guilty of the offence and liable for such offence would get the benefit and escape the rigour of Scction 14 A
The explanation also makes it abun dantly clear that all companies covered by the Companies Act would be companies within the meaning of explanation
On the contrary those companies failing under the explanation to Section 14 A would not be companies under the Companies Act
355 C F 22 Thus in the case of a company falling under the explanation to Section 14 A of the Provident Fund Act which does not come within the purview of the Companies Act the liability of the persons would be governed only by section 14A1 and 2 of the Provi dent Fund Act
They will not be entitled to any relief under Section 633
The benefit avail able under a social welfare legislation namely the Employ ees  Provident Fund Act cannot be defeated in this manner
1355 G HI