Case: L. Hazari Mal Kuthiala Vs. The Income-Tax Officer, Special Circle, Ambala Cantt

be made at any stage of the proceedings" etc., clearly indicate this. Sub-section (7A) is, however, not applicable here, because in respect of the cognate sub-section of the Indian Income-tax Act it was ruled by this Court that it could apply to a pending case only. It was to overcome this lacuna that the Explanation was added by the Indian Parliament. This amendment came in 1956, and the Patiala Act did not include a similar Explanation, because prior to 1956 the question had not arisen. There is one other difference between the Patiala Act and the Indian Act. Whereas sub-sec, (7A) was introduced in the Indian Act by an amendment, the corresponding sub-section was enacted at the same time as the rest of the Patiala Act.10. Now, it is quite clear that a case which was not pending at the time of transfer could not be transferred under sub-sec. (7A) of S. 5 of the Patiala Act.The same reasoning must be applied to that sub-section, as it was applied to the Indian Act. Learned counsel referred us to an affidavit by the Under Secretary, Central Board of Revenue reproduced in Pannalal Binjraj v. Union of India 1957 SCR 233 at p. 246 : ( (S) AIR 1957 SC 397 at p. 404) which stated the reason for the introduction of sub-sec. (7A). It is a little difficult to accept the affidavit as an aid to find out the intention why a particular law or amendment was enacted, more so where the affidavit concerns quite another Act of a different legislature. It is however, pertinent to remember that sub-sec. (7A) expressly gave the power to transfer pending cases, but said nothing about cases which were not pending. The power to transfer such cases before they came into being must, therefore, be found in some other enactment. The Department contends that it would fall within sub-sec. (5) of S. 5, and points out that this Court was not required to consider that sub-section because the transfer of the cases dealt with in the Bidi Supply cases 1956 SCR 267 : ( (S) AIR 1956 SC 479 ) was by an authority not named in sub-sec. (5) and therefore the transfer in those instances could not be held to be under that sub-section. The Department contends that the Commissioner of Income-tax is mentioned both in sub-sec. (5) and sub-sec. (7A) and could derive his power from one or the other or both.11. The short question thus in whether an individual case which was not a pending case could be transferred from one income-tax Officer to another under sub-sec. (5) of S. 5 of the Patiala Act, which was kept alive for assessment and reassessments relating to previous assessment years. Mr. Palkhiwala argues that the words of the sub-section "such persons or classes of persons or of such income of classes of income or in respect of such areas" denote, by the plural employed, a dealing with a group rather than an individual case. He further contends that if individual cases were held to be included in sub-sec. (5), then sub-sec. (7A) would be unnecessary an otiose. He argues that harmonious construction thus requires that the two sub-sections must be taken to cover different situations.12. The last argument is hardly open after the decision of this Court adverted to already. If pending cases along were with-in sub-sec. (7A), those cases which were not pending could not be said to have been provided for, there. There is thus no overlapping at least in so far as cases not pending were concerned. An arrangement for their disposal would be a subject of distribution of work and nothing much turns upon the employment of the plural number, because the plural includes the singular. Indeed, a single case might well be in a class separate from others. Duplication of powers is sometimes noticeable in statutes, and does not destroy the effectiveness of the power conferred. Section 24 of the Civil Procedure Code dealing with transfers of cases and the provisions of the Letters Patent of the High Court are instances in point. If a particular action is valid under one section, it cannot be rendered invalid because the identical action can also be taken under another section, and it makes no difference if the two empowering provisions are in the same statute. In any event, sub-sec. (7A) would cut down sub-sec. (5) only to the extent the former provides, and it has been held that it was confined to pending cases only. Sub-section (5) was thus available for cases which were not pending and the case which was the subject-matter of the Commissioners order was not a pending case.13. Mr. Palkhivala contends that sub-sec. (5) merely enables distribution of work, and does not deal with transfers. But where a case is not pending, an order relating to it may take the form of transfer or an arrangement for its disposal. There is nothing to prevent the Commissioner, acting under sub-sec. (5), to arrange that the case of an assessee shall be disposed of by a particular Income-tax Officer. The words of sub-sec, (5) that "Income-tax Officers shall perform their functions in respect of such persons . . . as the Commissioner . . . may . . . direct" only show that the Commissioner may direct that one Income-tax Officer shall not, and another Income-tax Officer shall, perform the functions in respect of such and such person or persons. The plural including the singular, the order of the Commissioner was valid, because he arranged and distributed work, and did not seek to transfer any case. It is however contended that this renders sub-sec. (7A) otiose. In our opinion, it does not, Special provision for transfer of pending cases is all that is provided there, and if such a transfer takes place the provisions of sub-sec. (7A) will be invoked. Those provisions are to be read as not prejudicing the general powers granted by sub-sec. (5) and vice versa.

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

Explanation:
0[ds]This argument, however, loses point, because the exercise of a power will, be referable to a jurisdiction which confers validity upon it and not to a jurisdiction under which it will be nugatory.This principle is well-settled. See Petamber Vajirshet v. Dhondu Navlapa ILR 12 Bom 486 at p.perhaps, is correct. If the Commissioner did not act under the Patiala law at all, which enjoined consultation with the Minister-in-charge and purported to act only under the Indian law, his mind would not be drawn to the need for consultation with the Central Board of Revenue. Even so, we do not think that the failure to consult the Central Board of Revenue renders the order of the Commissioner ineffective. The provision about consultation must be treated as directory, on the principles accepted by this Court in State of U.P. v. Manbodhan Lal Srivastava, 1958 SCR 533   : ( (S) AIR 1957 SC 912  ) and K. S. Srinivasan v. Union of India 1958 SCR 1295     at p. 1321 : (AIR 1958 SC 419   at p. 430).In the former case, this Court dealt with the provisions of Art. 320 (3)(c) of the Constitution, under which consultation with the Union Public Service Commission was necessary. This Court relied upon the decision of the Privy Council in Montreal Street Railway Co. v. Normandin 1917 ACview of what has been said in these cases the failure to consult the Central Board of Revenue does not destroy the effectiveness of the order passed by the Commissioner, however wrong it might be from the administrative point of view. The power which the Commissioner had, was entrusted to him, and there was only a duty to consult the Central Board of Revenue. The failure to conform to the duty did not rob the Commissioner of the power which he exercised, and the exercise of the power cannot, therefore, be questioned by the assessee on the ground of failure to consult the Central Board of Revenue, provision regarding which must be regarded as laying down administrative control and as being directory.Now, it is quite clear that a case which was not pending at the time of transfer could not be transferred under sub-sec. (7A) of S. 5 of the Patiala Act.The same reasoning must be applied to that sub-section, as it was applied to the Indianis a little difficult to accept the affidavit as an aid to find out the intention why a particular law or amendment was enacted, more so where the affidavit concerns quite another Act of a different legislature. It is however, pertinent to remember that sub-sec. (7A) expressly gave the power to transfer pending cases, but said nothing about cases which were not pending. The power to transfer such cases before they came into being must, therefore, be found in some otherpending cases along were with-in sub-sec. (7A), those cases which were not pending could not be said to have been provided for, there. There is thus no overlapping at least in so far as cases not pending were concerned. An arrangement for their disposal would be a subject of distribution of work and nothing much turns upon the employment of the plural number, because the plural includes the singular. Indeed, a single case might well be in a class separate from others. Duplication of powers is sometimes noticeable in statutes, and does not destroy the effectiveness of the power conferred. Section 24 of the Civil Procedure Code dealing with transfers of cases and the provisions of the Letters Patent of the High Court are instances in point. If a particular action is valid under one section, it cannot be rendered invalid because the identical action can also be taken under another section, and it makes no difference if the two empowering provisions are in the same statute. In any event, sub-sec. (7A) would cut down sub-sec. (5) only to the extent the former provides, and it has been held that it was confined to pending cases only. Sub-section (5) was thus available for cases which were not pending and the case which was the subject-matter of the Commissioners order was not a pendingour opinion, it does not, Special provision for transfer of pending cases is all that is provided there, and if such a transfer takes place the provisions of sub-sec. (7A) will be invoked. Those provisions are to be read as not prejudicing the general powers granted by sub-sec. (5) and vice versa.