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

2. The firm carried on business as forest lessees and timber merchants at Dhilwan in the former Kapurthala State. In that State, an Income-tax law was in force, and prior to the integration of the State, on April 10, 1947, the income of the firm for the account year 1945-46 (Samvat 2002) was duly assessed, and the tax was also paid. Subsequently, political changes took place, Kapurthala integrated into what was known as Pepsu, and the Rajpramukh issued two Ordinances in Samvat. 2005, by which all laws in force in Kapuurthala including the Income-tax law ceased to be operative from August 20, 1948. The two Ordinances instead applied laws in force in the Patiala State to the area of the new State which included Kapurthala, and the Patiala Income-tax Act. 2001, came into force. Later still, the Indian Finance Act, 1950 (26 of 1950) applied the Indian Income-tax Act to the Part B States, which had emerged as a result of political changes. Section 13 of the Indian Finance Act, 1950, repealed the Income-tax laws obtaining in the area of the Part B States except for the purpose of levy, assessment and collection of income-tax and super-tax in respect of the period defined therein.3. On March 12, 1955, the Income-tax Officer, Special Circle, Ambala, issued a notice purporting to be under S. 34 of the Patiala Income-tax Act of Samvat 2001 to the appellant firm calling upon it to file a return of its income and total world income, because he had reason to believe that the income had been underassessed. Previous to this, on November 4, 1953, the Commissioner of Income-tax, Punjab (I), Himachal Pradesh, Bilaspur and Simla, purporting to act under S. 5, sub-secs. (5) and (7A) of the Indian Income-tax Act, ordered that the assessment of the appellant firm would be done by the Income-tax Officer, Special Circle, Ambala and not by the Income-tax Officer, B-Ward, Patiala, who ordinarily would be the competent authority under S. 64 of the Indian Income-tax Act to assess the appellant firm. The appellant firm raised objections, but failed, and then filed the petition under Art. 226 of the Constitution, out of which the present appeal arises.

Reasoning: 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.