Case: Union of India and Others Vs. Gopal Das Gupta. (And Another Appeal)

section 135. There is great force in the contention on behalf of the respondents before us that if section 135 has conferred by these general words also the specific powers mentioned in section 131, then the amendment of section 131 in 1965 would have been unnecessary and that as in our view, quite enough reason for rejecting the contention raised on behalf of the Department.9. We also accept the view of the learned trial judge that by weighing the two sections 131 and 135, it appears clear that section 135 is a general provision while section 131 is a special provision and the special provision will have to be given the meaning for the special and limited purpose for which the provision has been incorporated in the sectionAgain, on examining section 142, it cannot be missed that while taking the provision from the old section 22(4) of the Act of 1922, certain improvements appears to have been made. Most important of them is the heading of section which "enquiry before assessment" which was latently appearing in the old provision in the Act of 1922 though had not been patently expressed there. Keeping that in mind, when we notice that the provision of section 143 of the Act of 1961 is headed "assessment" the distinction in the nature of the proceedings between these two section 142 and 143 are revealed. Mr. Pal made an earnest endeavour to impress on us that in the provision of section 143 itself, there is scope for what Mr. Pal calls enquiries by calling for documents and examining witnesses but the word "enquiry" is not occurring in section 143 at all while section 142 expressly makes it the heading of that section. Not only so, the heading is "enquiry before assessment". Therefore, the proceeding, i.e., enquiry under section 142 is an earlier stage of the proceeding, that is, the proceeding of assessment provided for in section 143, and no part of section 143 can be, in our view, brought within the words "enquiry under the Act", though Mr. Pal was emphasising "during assessment" which is a proceeding under the Act. The Income-tax Officer may draw upon documents, call for and examine witnesses, which in ordinary parlance and in loose way could also be an enquiry. But that enquiry is dictionary meaning of enquiry which is not what is connoted as an enquiry under the Act as has been mentioned in section 135.10. For this reason, we agree with the learned trial judge that the provision in section 135 which speaks of enquiry under the Act refers to the enquiry that provided by section 142 of the Act. But to say that much and no more may be misleading. It has also to be made clear that when the officers in section 135 are making enquiry under section 142 they, by dint of section 135, shall have all the powers that have been conferred on the Income-tax Officers under the Act, which means the powers which the Income-tax Act, 1961, directly confers and does not include the powers that section 131 enables them to avail of as drawn from the Civil Procedure Code which has vested the courts with the powers while dealing with suits. If, however, as Mr. Pal has attended to suggest, a particular officer is performing any function being assigned by the Board under section 120 of the Income-tax Act, 1961, then by dint of that assignment, all the powers for discharge of these functions will be available to that particular officer. Mr. Pal tended to make the point that the petitioners who are the respondents before us had not challenged the impugned notice or summons on the ground that there was no such assignment under section 120. In doing so, in our view, Mr. Pal was really not following the logic of events. During the controversy by correspondence, the petitioners who are the respondents before us had sought for information as to the legal authority and in answer they were only told about the legal proceeding by pointing to section 131 of the Income-tax Act. It was never contended by the officer or Department that during that correspondence or even in their affidavit in opposition at the trial stage they were under the authority of section 135 or for that matter under the authority of any assignment of function under section 120. That being so, there was no occasion for the petitioner to challenge any imaginary contention that will be raising a Frankenstein only to slay the demon. What is more important is that even in their affidavit-in- opposition in paragraph 9, the Department said only this in paragraph 7 at page 29"I deny and dispute the correctness of each and every submission made in paragraphs 12 and 13 of the petition. In particular, I deny that respondent No. 2 has no competence or authority or jurisdiction to issue the notice under section 131 of the said Act or that the said section does not authorise the said respondent to issue summons or require a personto appear before him as alleged or at all. At all material times, I was and I still continue to be the Assistant Director of Inspection, Intelligence."Therefore, it is not open to Mr. Pal to plead for the first time before us with section 120 as a shield. In any event, we make it clear that in the circumstances and facts appearing in the materials on record, there is nothing to show that there was any such assignment under section 120 of the Act to the particular officer we are concerned with. That being so, the decision of the learned trial Judge that the impugned notice and the proceeding are without jurisdiction and without any authority in law must be held to be the correct decision. We make it clear that if in fact there is any assignment, it will be open to the officer and Department to take legal and appropriate action by making that authority known

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]3. The learned trial judge, K. L. Roy J., accepted the contentions advanced for the petitioners before him that the claim of the Department that the officer was authorised under the provisions of section 135 to exercise all the powers of theOfficer under section 131 should be rejected mainly on the reason of the particular language that appears in the two sections and also for the reason that was advanced before him by pointing out that in 1965, section 131 was amended by adding "Inspecting Assistant Commissioner ofwhich amendment, according to the contentions of the petitioners, would be unnecessary if the meaning attributed to section 135 by the Department were correct because in that section 135, "Inspecting Assistant Commissioner" has been mentioned. To strengthen that contention the learned counsel for the petitioners before the learned trial judge referred to the Finance Bill, 1965, and the Statement of Objects and Reasons in respect of clause 38 therein which subsequently was enacted as section 38 of the Finance Act, 1965, effecting the aforesaid amendment in section 131. By relying on that Statement of Objects and Reasons, it was contended that the Legislature interpreted section 131 before its amendment as authorizing only the three officers mentioned therein, namely theOfficer, the Appellate Assistant Commissioner and the Commissioner, to exercise the powers mentioned in that section. The amendment to enlarge the number of officers so authorised by that section 131 was therefore felt necessaryObjection was taken on behalf of the Department about the propriety of referring to the Objects and reasons because it was contended on the behalf that the words of section 135 are absolutely plain and free from any ambiguity. To justify reference to and reliance on the Objects and Reasons above mentioned, reliance was placed on two decisions of the Supreme Court, one in the case of CIT v. Vasantsen Dwarkadas [1963] 49 ITR (SC) 1 at p.do not feel the necessity of going into the detailed facts of the cases cited by the learned counsel except that we may at once point out that the decision of the Supreme Court, turning on section 297(g) of theAct, was in a case in which the provision that was held to be per se unnecessary but added by way of abundant caution was not a provision of legislative enactment by Parliament but was by an order made by the Executive Government on the authority of a section in the statute. That distinction has to be kept in mind for considering the matter of the loud fact that an amendment of section 13 of theAct has been carried out by Parliament in 1965 by adding the Inspecting Assistant Commissioner, although that officer would have power conferred by section 131 of the Act by dint of the provisions in section 135 if the interpretation sought to be put by Mr. pal for the Department is to be accepted.8. This fact of amendment by the Legislature without drawing any assistance from the Statement of Objects and Reasons appearing in the Bill is reason enough in our view to enable us to accept the contention raised on behalf of the respondents before us and to reject the contentions raised on behalf of the Department regarding the interpretationApart from that we need only point out that the provision in the present section 131 had existed in the old Act of 1922 in the provision of section 37 of that Act. The provision in section 135 in the present Act was existing as a part of the old section 57B of the Act of 1922. The present section 142 was existing as(4) of section 22 of the repealed Act of 1922 and section 143 of the present Act has its predecessor in the old section 23 of the Act of 1922. While that history of the different sections in the present Act of 1961 has been delineated before us by Mr. Pal for the appellants, we cannot omit to notice that there are a little additions or a little omissions here and there between the language of the corresponding provisions of the present and the old Acts in these respects. Not much turns on that but what in our view is important to be considered is the language which appears in the relevant section of the present Act. First, we take up the important phrases of the two sections 131 and 135. While section 135 says that the "Inspecting Assistant Commissioner shall be competent to make an enquiry under this Act and for this purpose shall have all the powers that anOfficer has under this Act in relation to the making of enquiries", section 131 provides that the Officers mentioned therein "shall for the purpose of this Act have the same powers as are vested in the court under the Code of Civil Procedure, 1908, when trying a suit in respect of matters delineated in the section". Giving our full consideration to the particularity of the language, it appears to us that Parliament has made a distinction between the powers that have been conferred directly by this statute, that is, theAct, 1961, mentioned in section 135 and the powers which have been made available by drawing from the sources in another statute, i.e., "the powers as are vested in the court under the Code of Civil Procedure", and that is why the insertion of "Inspection Assistant Commissioner" in section 131 by amendment in 1965 was felt necessary although that category of officer has been mentioned in section 135. There is great force in the contention on behalf of the respondents before us that if section 135 has conferred by these general words also the specific powers mentioned in section 131, then the amendment of section 131 in 1965 would have been unnecessary and that as in our view, quite enough reason for rejecting the contention raised on behalf of the Department.9. We also accept the view of the learned trial judge that by weighing the two sections 131 and 135, it appears clear that section 135 is a general provision while section 131 is a special provision and the special provision will have to be given the meaning for the special and limited purpose for which the provision has been incorporated in the sectionAgain, on examining section 142, it cannot be missed that while taking the provision from the old section 22(4) of the Act of 1922, certain improvements appears to have been made. Most important of them is the heading of section which "enquiry before assessment" which was latently appearing in the old provision in the Act of 1922 though had not been patently expressed there. Keeping that in mind, when we notice that the provision of section 143 of the Act of 1961 is headed "assessment" the distinction in the nature of the proceedings between these two section 142 and 143 arex Officer may draw upon documents, call for and examine witnesses, which in ordinary parlance and in loose way could also be an enquiry. But that enquiry is dictionary meaning of enquiry which is not what is connoted as an enquiry under the Act as has been mentioned in section 135.10. For this reason, we agree with the learned trial judge that the provision in section 135 which speaks of enquiry under the Act refers to the enquiry that provided by section 142 of the Act. But to say that much and no more may be misleading. It has also to be made clear that when the officers in section 135 are making enquiry under section 142 they, by dint of section 135, shall have all the powers that have been conferred on theOfficers under the Act, which means the powers which theAct, 1961, directly confers and does not include the powers that section 131 enables them to avail of as drawn from the Civil Procedure Code which has vested the courts with the powers while dealing with suits. If, however, as Mr. Pal has attended to suggest, a particular officer is performing any function being assigned by the Board under section 120 of theAct, 1961, then by dint of that assignment, all the powers for discharge of these functions will be available to that particular officer. Mr. Pal tended to make the point that the petitioners who are the respondents before us had not challenged the impugned notice or summons on the ground that there was no such assignment under section 120. In doing so, in our view, Mr. Pal was really not following the logic of events. During the controversy by correspondence, the petitioners who are the respondents before us had sought for information as to the legal authority and in answer they were only told about the legal proceeding by pointing to section 131 of theAct. It was never contended by the officer or Department that during that correspondence or even in their affidavit in opposition at the trial stage they were under the authority of section 135 or for that matter under the authority of any assignment of function under section 120. That being so, there was no occasion for the petitioner to challenge any imaginary contention that will be raising a Frankenstein only to slay the demon. What is more important is that even in theiropposition in paragraph 9, the Department said only this in paragraph 7 at page 29"I deny and dispute the correctness of each and every submission made in paragraphs 12 and 13 of the petition. In particular, I deny that respondent No. 2 has no competence or authority or jurisdiction to issue the notice under section 131 of the said Act or that the said section does not authorise the said respondent to issue summons or require a personto appear before him as alleged or at all. At all material times, I was and I still continue to be the Assistant Director of Inspection, Intelligence."Therefore, it is not open to Mr. Pal to plead for the first time before us with section 120 as a shield. In any event, we make it clear that in the circumstances and facts appearing in the materials on record, there is nothing to show that there was any such assignment under section 120 of the Act to the particular officer we are concerned with. That being so, the decision of the learned trial Judge that the impugned notice and the proceeding are without jurisdiction and without any authority in law must be held to be the correct decision. We make it clear that if in fact there is any assignment, it will be open to the officer and Department to take legal and appropriate action by making that authority known