Summarize the following court judgment. Nos. 97	 97A	 44	 86 to 88	 111	 112	 85	 158	 211 to 251 and 225 to 229 of 1956. Under Article 32 of the Constitution of India for the enforcement of Fundamental Rights ' N. C. Chatterji A. K. Sen	 B. P. Maheshwari and Tarachan Brijmohan Lal	 for the petitioners in Petitions Nos. 97 and 97A of 1956. N. C. Chatterji and V. section Sawhney	 for the petitioners in Petitions Nos. 44.	 86 to 88	 Ill and 112 of 1956. N. C. Chatterji and D. N. Mukherji	 for the petitioners in Petition No. 85 of 1956. Purshottam Tirukumdas and 0. P. Lal	 for the petitioners in Petitions Nos. 211 to 215 of 1956. section C. Isaacs and K. R. Chaudhuri. for the petitioners in Petitions Nos. 225 to 229 of 1956. Bhagirth Das and M. L. Kapur	 for the petitioner in petition No. 158 of 1956. C. K. Daphtary	 Solicitor General of India	 G. N. Joshi	 Porpus A. Mehta and R. H. Dhebar	 for the respondents (Union	 of India	 the Central Board of Revenue and various Income tax Officers in all petitions.) B. Sen and P. K. Ghose	 for the State of West Bengal (Respondents Nos. 2 and 3 in Petitions Nos.211 to 215 of 1956). December 21. The Judgment of the Court was delivered by BHAGWATI J. These petitions under article 32 of the Constitution raise a common question of law whether section 5 (7A) of the Indian Income tax Act	 hereinafter 236 called the Act	 is ultra vires the Constitution as infringing the fundamental rights enshrined in article 14 and article 19 (1) (g). The facts which led to the filing of the petitions 'nay be shortly stated. petitions Nos. 97 & 97 A of 1956: The petitioners are M/s. pannalal Binjrai	 Oilmill owners	 merchants and commission agents	 carrying on business at Sahibganj in the district of Santhal Pargans	 having their branch at 94 Lower Chitpur Road	 Culcutta	 petitioner No. 1	 and R. B. Jamuna Das Chowdhury	 resident of the same place and erstwhile karta of the Hindu undivided family	 which carried on business in the name and style of M/S. Pannalal Binjr petetioner No. 2. Before September 28	 1954	 they	 being assessed by the Income tax officer	 Special Circle	 Patna. On September 28	 1954	 the Central Board of Revenue made an order transferring their cases to the Income.tax Officer	 Central Circle XI	 Calcutta. On January 22	 1955	 the Central Board of Revenue transferred the cases of petitioner No. 2 to the Income tax Officer Central Circle VI	Delhi	 and on July 12	 1955	 it similarly transferred the cases of petitioner No. I to the same officer. Prior to June 29	 1959	 he had been assessed to income tax by the Income tax Officer	 Special Survey Circle VII	 Calcutta. On June 29	 1955	 the Central Board of Revenue transferred his case to the Income tax Officer	 Special Circle	 Ambala		 and the said officer continued the proceedings in the transferred case and also instituted further proceedings against the petitioner and assessed him under section 23 (4) of the Act for the assessment years 1946 47 and 1947 48. Demands were made upon the petitioner for payment of the amount of income tax thus assessed whereupon he filed this petition impeaching the validity of the order of the Central Board 'of Revenue dated June 29	 1955	 and the proceedings entertained by the Income tax Officer	 Special ' Circle	 Ambala	on the ground that section 5 (7A) of the Act was ultra vires the Constitution. Before October 20	 1953	 they were being assessed by the Income tax Officer		 Hoshiarpur	 but on that date their case was transferred under section 5 (7A) of the Act by the Commissioner of Income tax to the Income tax Officer	 Special Circle	 Ambala. The said officer continued the said case and reopened the assessment for the years 1944 45 to 1050 51 and completed the assessment for the assessment	 years 1947 48	 1950 51 and 1951 52. These petitioners also thereupon filed the petition challenging the validity of the order of transfer made by the Commissioner of Income tax on October 20	 1953	 and the proceedings entertained by the Income tax Officer	 Special Circle	 Ambala	 thereafter	 on the same ground of the ultra vires character of section 5 (7A) of the Act. of M/s bhagwan Das Sud & Sons and the cases of both these petitionrs were transferred to the Income tax Officer	 Special 238 Circle	 Ambala	 as above	 by the said respective orders. Petitions Nos. 86	 87	 88	 111	 112 and 158 of 1956: These petitions may be compendiously described as the Amritsar group. The petitioner in Petition No. 86/56 is Sardar Gurdial Singh	 son of section Narain Singh. The petitioner in Petition No. 87/56 is Dr. Sarmukh Singh	 son of section Narain Singh. The petitioner in Petition No. 112156 is section Ram Singh	 soil of section Narain Singh. These three are brothers and the petitioner in Petition No. 88/56 is the father	 section Narain Singh	 son of section Basdev Singh. The father and the three sons were the directors in the Hindustan Embroidery Mills (Private) Ltd.	 petitioner No. 1 in Petition No. 111/56	 which is located at Chheharta near Amritsar. All these petitioners were	 prior to the orders of transfer made by the Commissioner of Income tax under section 5(7A) of the Act	 being assessed by the Income tax Officer	 'A ' Ward	 Amritsar	 but their cases were transferred on or about June 29	 1953	 from the Income tax Officer	 'A ' Ward	 Amritsar	 to the Income tax Officer	 Special Circle	 Amritsar. These cases were continued by the latter officer and notices under a. 34 of the Act were also issued by him against them for the assessment years 1947 48 to ' 1951 52. Each one of them filed a separate petition challenging the said orders of transfer by the Commissioner of Income tax and the proceedings entertained by the Income tax Office r	 Special Circle	 Amritsar	 against them on the score of the unconstitutionality of section 5 (7A) of the Act. The petitioner in Petition No. 158/56 is one Shri Ram Saran Das Kapur	 the head and karta of the Hindu undivided family carrying on business outside Ghee Mandi Gate	 Amritsar. His case also whichprior to the order complained against	 was being entertained by the Income tax Officer	 'F ' Ward	 Amritsar	 was transferred on some date in 1954 by an order of the Commissioner of Income tax under section 5(7A) of the Act to the Income tax Officer	 Special Circle	 Amritsar. No objection wag taken by the 239 petitioner to this order of transfer until after the assess. ment order was passed against him but he also challenged the validity of the said order of transfer and the proceedings entertained by the Income tax Officer	 Special Circle	 Amritsar	 thereafter	 on the same grounds as the other petitioners. Petitions NOs.211 to 215 of 1956: These petitions may be described as the Sriram Jhabarmull group. Though ' separately filed	 the petitioner in each of them is the same individuals Nandram Agarwalla	 who is the sole proprietor Of a business which he carries on under the name and style of I Sriram Jhabarmull '. It is a business	 inter alia	 of import and export of piece goods ' as commission agents	 and dealers in raw wool and other materials. The principal place of business is at Kalimpong	 in the district of Darjeeling	 though there is also a branch at Calcutta. Prior to the orders of the Commissioner of Income tax under section 5(7A) of the Act complained against	 the petitioner was being assessed by the Income tax Officer	 Jalpaiguri	 Darjeeling. On June 8	 1946	 there was a further transfer assigning the cases to the Income tax Officer	 Central Circle 1	 Calcutta	 and on July 27	 1946	 orders were passed by the Commissioner of Income tax Central	 Calcutta	 under section 5(7A) transferring the cases of the petitioner to the Income tax Officer	 Central Circle IV	 Calcutta. These are the orders which are complained against as unconstitutional and void invalidating the proceedings which were continued and subsequently instituted by the Income tax Officer	 Central Circle IV	 Calcutta	 against the petitioner on the score of the unconstitutionality of section 5(7A) of the Act. It may be noted	 however that these orders were all prior to the Constitution and 240 having been made on July 27	 1946	 as aforesaid were followed up by completed assessment proceedings in respect of the said respective years and also certificate proceedings under section 46(2) of the Act. There were further orders dated December 15	 1947	 and sometime in September	 1948	 transferring the cases of the petitioner from the Income tax Officer	 Central Circle IV	 Calcutta	 to the Income tax Officer	 Central Circle 1	 Calcutta	 and back from him to the Income tax Officer	 Central Circle	IV Calcutta. dated July 27	 1946	 which was passed under section 5(7A) of the Act. Petitions Nos. 225 to 229 of 1956: These Petitions may be classed as the Raichur group. They concern the assessment for the respective assessment years 1950 5l	 1951 52	 1952 53	 1953 54 and 1954 55. The petitioner in each of them is the same individual	 one Kalloor Siddannal who resides and carries on business in Raichur in the State of Hyderabad as commission agent and distributor of agricultural products. Income tax was first imposed in the Hyderabad State in 1946 by a special Act of the Legislature and the petitioner was assessed under the Hyderabad Income tax Act by the Additional Income tax Officer	 Raichur	 for the assessment years 1948 49 and 1949 50. As from April 1	 195o	 the Indian Income tax Act was applied to Hyderabad but the Additional Income tax Officer	 Raichur	 continued to assess the petitioner. The cases in respect of the assessment years 1950 51	 1951 52 and 1952 53 were pending before that officer and proceedings were taken in connection with the assessment for those years. On December 21	 1953	 however	 the Commissioner of Income tax Hyderabad	 issued a notification under section 5(7) ordering that the case of the petitioner should be transferred from the Additional income tax Officer	 Raichur	 to the Income tax Officer	 Special Circle	 Hyderabad. The latter officer continued the assessment proceedings and issued notices under section 22(.4) of the Act on July 1	 1954	 November 2	 1954	 November 30	1954	 241 December 19	 1954	 and March 11	 1955	 in respect of the said years of assessment. Assessments for the said years were made on March 21	 1955	 and on April 24	 1955	 the petitioner made an application under section 27 of the Act to reopen the assessment for the year 1950 51 as on default under section 23 (4) of the Act. It appears	 however	 that shortly before May 19	 1955	 the Commissioner of Income tax	 Hyderabad	 made another order under section 5 (7A) and section 64 (5)(b) of the Act transferring all the cases of the petitioner to the main Income tax Officer	 Raichur. Curiously enough	 the petitioner challenged both the orders one dated December 21	 1953	 and the other made sometime in May	 1955	 under section 5 (7A) of the Act and the proceedings continued and instituted by the respective officers thereunder as unconstitutional and void on the ground that section 5 (7A) was ultra vires the Constitution even though ultimately he was being assessed by the main Income tax Officer	 Raichur	 under the latter order. This is the common question in regard to the ultra vires character of section 5 (7A) of the Act which is raised in all these petitions	 though in regard to each group there are several questions of fact involving the consideration of the discriminatory character of the specific orders passed therein which we shall deal with hereafter in their appropriate places. Section 5 (7A) of the Act runs as under: " 5 (7A) : The Commissioner of Income tax may transfer any ease from one Income tax Officer subordinate to him to another	 and the Central Board of Revenue may transfer any case from any one Income tax Officer to another. Such transfer may be made at any 'stage of the proceedings	 and shall not render necessary the reissue of any notice already issued by the Income tax Officer from whom the case is transferred. " This sub section was inserted by section 3 of the Indian Income tax Amendment Act	 1940 (XL of 1940) which was passed as a result of the decision of the Bombay High Court in Dayaldas Kushiram vs Commissioner of Income tax	 (Central) (1) I.L.R. 	 31 242 By the Indian Income tax Amendment Act	 1956 (XXVI of 1956) an explanation was added to section 5(7A) in the terms following as a result of the decision of this Court in Bidi Supply Co. v The Union of India(1): " Explanation : In this sub section	 I case ' in relation to any person whose name is specified in the order of transfer means all proceedings under this Act in respect of any year which may be pending on the date of the transfer		 and includes all proceedings under this Act which may be commenced after the date of the transfer in respect of any year. " Section 5(7A) together with the explanation thus falls to be considered by us in these petitions. The argument on behalf of the petitioners is that a. 64	 sub sections(1) and (2) of the Act confer upon the assessee a valuable right and he is entitled to tell the taxing authorities that he shall not be called upon to attend at different places and thus upset his business. Section 5(7A) invests the Commissioner of Income tax and the Central Board of Revenue with naked and arbitrary power to transfer any case from any one Income tax Officer to another without any limitation in point of time	 a power which is unguided and uncontrolled and is discriminatory in its nature and it is open to the Commissioner of Income tax or the Central Board of Revenue to pick out the case of one assessee from those of others in a like situation and transfer the same from one State to another or from one end of India to the other without 'specifying any object and without giving any reason	 thus subjecting the particular assessee to discriminatory treatment whereas the other assessees similarly situated with him would continue to be assessed at the places where they reside or carry on business under section 64 (1) and (2) of the Act. The discrimination involved in section 5(7A) is substantial in character and	 therefore	 infringes the fundamental right enshrined	in article 14 of the Constitution. It also infringes article 19 (1) (g) in so far as it imposes an unreasonable restriction on the fundamental right to carry on trade or business (Vide Himmatlal Harilal Mehta vs The State of Madhya Pradesh(1)). The very same question as regards the unconstitutionality of section 5(7A) of the Act had come up for decision before this Court in Bidi Supply Co. vs The Union of India (supra). The case of the assessee there had been transferred by the Central Board of Revenue under section 5(7A) of the get from the Income tax Officer	 District 111	 Calcutta	 to the Income tax Officer	 Special Circle	 Ranchi. The order was an omnibus wholesale order of transfer expressed in general terms without any reference to any particular case and with out any limitation as to time and was challenged as void on the ground that section 5(7A) under which it had been passed was unconstitutional. This Court	 by a majority judgment	 after discussing the general principles underlying article 14	 did not adjudicate upon that question	 observing at p. 276: "We do not consider it necessary	 for the purpose of this case	 to pause to consider whether the constitutionality of Sub section.(7A) of section 5 can be Supported on the principle of any reasonable classification laid down by this Court or whether the Act lays down any principle for guiding or regulating the exercise of discretion by the Commissioner or Board of Revenue or whether the sub section confers an unguided and arbitrary power on those authorities to pick and choose individual assessee and place that assessee at a disadvantage in comparison with other assessees. All assessees are entitled to the benefit of those provisions except where a particular case or cases of a particular assessee for a particular year or years is or are transferred under sub section (7A) of section 5	 assuming that section to be valid and if a particular case or cases is or are transferred his right under section 64 still remains as regards his other case or cases. " The majority judgment then proceeded to consider the effect of such an omnibus order unlimited in point of time on the rights of the assessee and further observed in that context at p. 277: " This order is calculated to inflict considerable inconvenience and harassment on the petitioner. Its books of account will have to be produced before the Income tax Officer	 Special Circle	 Ranchi a place hundreds of miles from Calcutta	 which is its place of business. There may be no suitable place where they can put up during that period. There will certainly be extra expenditure to be incurred by it by way of railway fare	 freight and hotel expenses. Therefore the reality of the discrimination cannot be gainsaid. In the circumstances this substantial discrimination has been inflicted on the petitioner by an executive fiat which is not founded on any law and no question of reasonable classification for purposes of legislation can arise. Here "the State" which includes its Income tax department has by an illegal order denied to the petitioner	 as compared with other Bidi mer chants who are similarly situate	 equality before the law or the equal protection of the laws and the petitioner can legitimately complain of an infraction of his fundamental right under Article 14 of the Constitution. " The question as to the constitutionality of section 5 (7A) of the Act was thus left open and the decision turned merely on the construction of the impugned order. 245 Learned counsel for the petitioners	 however	 lays particular stress on the observations of Bose	 J.	 in the minority judgment which he delivered in that case whereby he held that sections 5 (7A) and 64 (5) (b) of the Act were themselves ultra vires article 14 of the Constitution and not merely the order of the Central Board of Revenue. The learned Judge referred to a passage from the judgment of Fazl Ali	 J.	 in The State of West Bengal vs Anwar Ali Sarkar(1) and also pointed out the decision of this Court in M/S. Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh and Two Others(2) and observed: " What is the position here? There is no hearing	 no reasons are recorded: just peremptory orders transferring the case from one place to another without any warning; and the power given by the Act is to transfer from one end of India to the other; nor is that power unused. We have before us in this Court a case pending in which a transfer has been ordered from Calcutta in West Bengal to Ambala in the Punjab." (p. 283) " If the Legislature itself had done here what the Central Board of Revenue has done and had passed an Act in the bald terms of the order made here transferring the case of this petitioner	 picked out from others in a like situation	 from one State to another	 or from one end of India to the other	 without specifying any object and without giving any reason	 it would	 in my judgment	 have been bad. I am unable to see how the position is bettered because the Central Board of Revenue has done this and not Parliament." (p. 284 5) " In my opinion	 the power of transfer can only be conferred if it is hedged round with reasonable restrictions	 the absence or existence of which can in the last instance be determined by the courts; and the exercise of the power must be in conformity with the rules of natural justice	 that is to say	 the parties affected must be heard when that is reasonably possible	 and the reasons for the order must be reduced	 however briefly	 to writing so that men may know that (1) ; 	 309 310.`(2) ; 246 the powers conferred on these quasi judicial bodies are being justly and properly exercised." (p. 287) The answer furnished on behalf of the State to this argument is fourfold: (i)that the provision contained in section 5 (7A) of the Act is a measure of administrative convenience enacted with a view to more conveniently and effectively deal with the cases of the assessees where the Commissioner of Income tax considers it necessary or desirable to transfer any case from one Income tax Officer subordinate to him to another or the Central Board of Revenue similarly considers it necessary or desirable to transfer any case from any one Income tax Officer to another. The real object with which section 5 (7A) was inserted by the Indian Income tax Amendment Act	 1940 (XL of 1940)	 has been thus set out in the affidavit of Shri V. Gouri Shankar	 Under Secretary	 Central Board of Revenue	 dated November 19	 1956	 which is the pattern of all the affidavits filed on behalf of the State in these petitions: " 4. I say that the provisions of section 5 (7A) were inserted by the Income tax Amendment Act	 XL of 1940	 with the object of minimising certain procedural difficulties. Before this amendment was passed there was no specific provision in the Act for transferring a case from one Income tax Officer to another except by a long and circuitous course even at the request of the assessees. In order therefore to be able to transfer the case from one 1. to another either because of the request of the assessee or for dealing with cases involving special features such as cases of assessees involving widespread activities and large ramifications or inter related transactions	 power to transfer cases was conferred upon the Central Board of Revenue and the Commissioner of Income tax as the case may be. I say that the provisions of section 5 (7A) ate thus administrative in character. . (ii)that the assessee whose case is thus transferred is not subjected to any discriminatory procedure in the matter of his assessment. The Income tax Officer to whom his case is transferred deals with it under the same procedure which is laid down in the relevant 247 provisions of the Act. The decision of the Income tax Officer is subject to appeal before the Appellate Assistant Commissioner and the assessee has the further right to appeal to the Income tax Appellate Tribunal and to approach the High Court and ultimately the Supreme Court	 as provided in the Act. All assessees	 whether they are assessed by the Income tax Officer of the area where they reside or carry on business or their cases are transferred from one Income tax Officer to another	 are subject to the same procedure and are entitled to the same rights and privileges in the matter of redress of their grievances	 if any	 and there is no dis crimination whatever between assessees and assessees; (iii)that the right	 if any	 conferred upon the assessee under section 64 (1) and (2) of the Act is not an absolute right but is circumscribed by the exigencies of tax collection and can be negatived as it has been in cases where the Commissioner of Income tax or the Central Board of Revenue	 as the case may be	 think it necessary or desirable to transfer his case from one Income tax Officer to another under section 5 (7A) of the Act having regard to all the circumstances of the case. The argument of inconvenience is thus sought to be met in the same affidavit: " 5. 1 further say that as a result of any transfer that may be made under the provisions of section 5 (7A) there is no discriminatory treatment with regard to the procedure and that no privileges and rights which are given to the assessees by the Income tax Act are taken away nor is the assessee exposed to any increased prejudice	 punitary consequences or differential treatment. I say that in cases where transfers under this section are made otherwise than on request from assessees	 the convenience of the assessees is taken into consideration by placing the case in the hands of an Income tax Officer who is nearest to the area where it will be convenient for the assessee to attend. If on account of administrative exigencies this is not possible and the assessee requests that the examination of accounts or evidence to be taken should be in a place convenient to him	 the I.T.O. complies with the request 248 of the assessee and holds the hearing at the place requested. " Even if there be a difference between assessees who reside or carry on business in a particular area by reason of such transfers the difference is not material. It is only a minor deviation from a general standard and does not amount to a denial of equal rights; (iv)that the power which is thus vested is a discretionary power and is not necessarily discriminatory in its nature and that abuse of power is not to be easily assumed where discretion is vested in such high officials of the State. Even if abuse of power may sometimes occur	 the validity of the provision cannot be contested because of such apprehension. What may be struck down in such cases is not the provision itself but the discriminatory application thereof. The petitioners rejoin by relying upon the following passage from the judgment of Fazl Ali	 J.	 in The State Of West Bengal vs Anwar Ali Sarkar	 (Supra)	 which was referred to by Bose	 J.	 in his minority judgment in Bidi Supply Co. vs The Union of India	 (Supra)	 at page 281: " It was suggested that the reply to this query is that the Act itself being general and applicable to all persons and to all offenses	 cannot be Said to discriminate in favour of or against any particular case or classes of persons or cases	 and if any charge of discrimination can be leveled at all	 it can be levelled only against the act of the executive authority if the Act is misused. This kind of argument however does not appear to me to solve the difficulty. The result of accepting it would be that even where discrimination is quite evident one cannot challenge the Act simply because it Is couched in general terms; and one cannot also challenge the act of the executive authority whose duty it is to administer the Act	 because that authority will say: I am not to blame as I am acting under the Act. It is clear that if the argument were to be 	accepted	 article 14 could be easily defeated. I think the fallacy of the argument lies in overlooking the fact that the I insidious discrimination complained of is incorporated in the Act itself '	 it being so drafted 249 that whenever any discrimination is made such discrimination would be ultimately traceable to it. The pivot of the whole argument of the petitioners is the provisions contained in section 64(1) and (2) of the Act which prescribe the place of assessment. They are: " 64. (1) Where an assessee carries on a business	 profession or vocation at any place	 he shall be assessed by the Income tax Officer of the area in which that place is situate or	 where the business	 profession or vocation is carried on in more places than one	 by the Income tax Officer of the area in which the principal place of his business	 profession or vocation is situate. (2)In all other cases	 an assessee shall be assessed by the Income tax Officer of the area in which he resides. " These provisions were construed by the Bombay High Court in Dayaldas Kushiram vs Commissioner Income tax	 (Central)	 (supra)	 and Beaumont	 C.J.	 observed at p. 657: " In my opinion section 64 was intended to ensure that as far as practicable an assessee should be assessed locally	 and the area to which an Income tax Officer is appointed must	 so far as the 'exigencies of tax collection allow	 bear some reasonable relation to the place where the assessee carries on business or resides." Kania	 J.	 as he then was	 went a step further and stated at p. 660: "A plain reading of the section shows that the same is imperative in terms. It also gives to the assessee a valuable right. He is entitled to tell the taxing authorities that he shall not be called upon to attend at different places and thus upset his business. " The learned Judges there appear to have treated the provisions of section 64(1) and (2) more as a question of right than as a matter of convenience only. If there were thus a right conferred upon the assessee by the provisions of section 64(1) and (2) of the Act and that right continues to be enjoyed. by all the assessees except the 32 250 assessee whose case is transferred under section 5(7A) of the Act to another Income tax Officer outside the area where he resides or carries on business	 the assessee can urge that	 as compared with those other assessees	 he is discriminated against and is subjected to inconvenience and harassment. It is	 therefore	 necessary to consider whether any such right is conferred upon the assessee by section 64(1) and (2) of the Act. Prima facie it would appear that an assessee is entitled under those provisions to be assessed by the Income tax Officer of the particular area where he 	resides or carries on business. Even where a question arises as to the place of assessment such question is under section 64(3) to be determined by the Commissioner or the Commissioners concerned if the question is between places in more States than one or by the Central Board of Revenue if the latter are	 not in agreement and the assessee is given an opportunity of representing his views before any such question is determined. This provision also goes to show that the convenience of the assessee is the main consideration in determining the place of assessment. Even so the exigencies of tax collection have got to be considered and the primary object of the Act	 viz.	 the assessment of income tax	 has got to be achieved. The hierarchy of income tax authorities which is set up under Chapter 11 of the Act has been so set up with a view to assess the proper income tax payable by the assessee and whether the one or the other of the authorities will proceed to assess a particular assessee has got to be determined not only having regard to the convenience of the assessee but also the exigencies of tax collection. In order to assess the tax payable by an assessee more conveniently and efficiently it may be necessary to have him assessed by an Income tax Officer of an area other than the one in which	 he resides or carries on business. It may be that the nature and volume of his business operations are such as require investigation into his affairs in a place other than the one where he resides or carries on business or that he is so	 connected with various other individuals or organiza tions in the way of his earning his income as to render 251 such extra tertitorial investigation necessary: before he may be properly assessed. These are but instances of the various situations which may arise wherein it may be thought necessary by the Income tax authorities to transfer his case from the Income tax	 Officer of the area in which he resides or carries on business to	 another Income tax Officer whether functioning in the same State or beyond it. This aspect of the question wag emphasized by Beaumont	 C.J.	 in Dayaldas Kushiram vs Commissioner of Income tax	 (Central)	 (supra)	 at page 146	 when he used the expression " as far as practicable " in connection with the assessee 's right to be assessed locally and the expression " so far as exigencies of tax collection allow " in connection with the appointment of the Income tax Officer to assess the tax payable by the particular assessee. In the later case of Dayaldas Kushiram vs Commissioner of Income tax	 (Central)(1)	 Beaumont	 C.J.	 expressed himself as follows: " The Income tax Act does not determine the place of assessment. What it does is to determine the Officer who is to have power to assess and in some cases it does so by reference to locality but I apprehend that an appeal would be not against an order of the Commissioner as to the place of assessment	 but against the order of assessment of the Income tax	 Officer	 thus stating in effect that this section does not give a right to the assessee to have his assessment, at a parti cular place but determines the Income tax Officer who is to have power to assess him. This aspect was further emphasized by the Federal Court in Wallace Brothers & Co. vs Commissioner of, Income tax, Bombay, Sind & Baluchistan (2), where Spens, C.J., observed: Clause (3) of section 64 provides that any question as to the place of assessment shall be determined ' by the Commissioner or by the Central Board of Revenue Proviso 3 to the clause enacts that if the place of assessment is called in question by the assessee, the Income tax Officer shall, if not satisfied, with the (1) , 101.(2) A.I.R. 1945 F.C. 9,13.252 correctness of the claim, refer the matter for determination under this sub section before assessment is made. These provisions clearly indicate that the matter is more one of administrative convenience than of jurisdiction and that in any event it is not one for adjudication by the Court.  It may be noted	 however	 that in the passage at page 276 of the majority judgment in Bidi Supply Co. vs The Union of India (supra)	 this court regarded the benefit conferred on the assessee by these provisions of a. 64(1) and (2) of the Act as a right and it is	 too late in the day for us to say that no such right to be assessed by the Income tax Officer of the particular area	 where he resides or carries on his business is conferred on the assessee. This right	 however	 according to the authorities above referred to	 is hedged in with the limitation that it has to yield to the exigencies of tax collection. The position	 therefore	 is that the determination of the	 question whether a particular Income tax Officer should assess the case of the assessee depends on (1) the convenience of the assessee as posited in section 64 (1) and (2) of the Act	 and (2) the exigencies of tax collection and it would be open to the Commissioner of Income tax and the Central Board of Revenue who are the highest amongst the Income tax. Authorities under the Act to transfer the case of a particular assessee from the Income tax Officer of the area within which he resides or carries on business to any other Income tax Officer if the exigencies of tax collection warrant the same. It is further to be noted that the infringement of such a right by the order of transfer	 under section 5 (7A) of the Act is not a material infringement. It is only a deviation of a minor character from the general standard and does not necessarily involve a denial of equal rights for the simple reason that even after such transfer the case is dealt with under the normal procedure which is prescribed in the Act. The production and investigation of the books of account	 the enquiries to be made by the Income tax Officer and the whole of the procedure as to assessment including the further 253 appeals after the assessment is made by the Incometax Officer are the same in a transferred case as in others which remain with the Income tax Officer of the area in which the other assesees reside or carry on business. There is thus no differential treatment and no scope for the argument that the particular assessee is discriminated against with reference to others similarly situated. It was observed by this Court in	 M. K. Gopalan vs The State of Madhya Pradesh(1): " In support of the objection raised under article 14 of the Constitution	 reliance is placed on the decision of this Court in Anwar Ali Sarkar 's case. In the pre ' sent case	 the Special Magistrate under section 14 of the Criminal Procedure Code has to try the case entirely under the normal procedure	 and 'no discrimination of the kind contemplated by the decision in Anwar Ali Sarkar 'd case and the other cases following it arises here. A law vesting discretion in an authority under such circumstances cannot be said to be discriminatory as such	 and is therefore not hit by article 14 of the Constitution. There is	 therefore	 no substance in this contention." To a similar effect were the observations of Mukherjea	 J.	 as he then was	 in The State of West Bengal vs Anwar Ali Sarkar	 (supra)	 at p. 325: "I agree with the Attorney General that if the differences are not material	 there may not be any discrimination in the proper sense of the word and minor deviations from the general standard might not amount to denial of equal rights deemed never at any time to have applied to an assessee where	 in consequence of any transfer made under section 5 (7A)	 a particular Income tax Officer has been charged with the function of assessing that assessee. section 64 (5) was incorporated by the Income tax Law Amendment Act	 1940 (XL of 1940) simultaneously with section 5 (7A). It is ' therefore	 urged that an assesse whose case has been thus transferred has no right under section 64 (1) and (2) and those assessees alone who do not come within the purview of section 64 (5) can have the benefit of section 64 (1) and (2). This argument	 however	 ignores the fact that section 5 (7A) is the very basis of the enactment of the relevant provision in section 64 (5) and if a. 5 (7A) cannot stand by virtue of its being discriminatory in character	 the relevant portion of section 64 (5) also must fall with it. It is then contended that a. 5 (7A) is in itself discriminatory and violative of the fundamental right en shrined in article 14. The power which is vested in the Commissioner of Income tax and the Central Board of Revenue is a naked and arbitrary power unguided and uncontrolled by any rules. No rules have been framed and no directions given which would regulate or guide their discretion or on the basis of which such transfers can be made and the whole matter is left to the unrestrained will of the Commissioner of Income tax or the Central Board of Revenue without there being anything which could ensure a proper execution of the power or operate as a check upon the injustice that might result from the improper execution of the same. To use the words of Mr. Justice Matthews in the case of Yick Wo vs Hopkins(1): ". when we remember that this action or nonaction may proceed from enmity or prejudice	 from partisan zeal or animosity	 from favoritism and other improper influences and motives easy of concealment and difficult to be detected and exposed	 it becomes unnecessary to suggest or comment upon the injustice capable of being wrought under cover of such a power	 for that becomes apparent to every one who gives to the subject a moment 's consideration." 	 373; 	 227.255 In other words	 " it is not a question of an uncon stitutional administration of a statute otherwise valid on its face but here the unconstitutionality is writ large on the face of the statute itself " (Per Das	 J.	 as he then was	 in The State of West Bengal vs Anwar Ali	 Sarkar	 (supra) at p. 346). It has to be remembered that the purpose of the Act is to levy income tax	 assess and collect the same. The preamble of the Act does not say so in terms it being an Act to consolidate and amend the law relating to income tax and super tax but that is the purpose of the Act as disclosed in the preamble of the First Indian Income tax Act of 1886 (Act II of 1886). It follows	 therefore	 that all the provisions contained in the Act have been designed with the object of achieving that purpose. There is in the first instance	 the charge of income tax. Then we find set up the various authorities in the hierarchy who are entrusted with the function of assessing the income tax	 the Central Board of Revenue being at the apex. There is also an Appellate Tribunal which is established for hearing appeals against the decisions of the Appellate Assistant Commissioners. Then follow the provisions in regard to taxable income	 mode of assessment and cognate provisions. The Income tax Officers are invested with the duty ' of assessing the income tax of the assessees in the first instance. The Assistant Commissioners of Income tax	 are the appellate authorities over the decisions of the Income tax Officers and the Income tax Appellate Tribunal is the final appellate authority barring of course references under section 66(1) of the Act to the High Court on questions of law. The Commissioners of Income tax and the Central Board of Revenue are mainly administrative authorities over the Income tax Officers and the Assistant Commissioners of Income tax and they are to distribute and control the work to be done by these authorities. All officers and persons employed in the execution of the Act are to observe and follow the orders instructions and directions of the. Central Board of Revenue which is the highest authority in the hierarchy and	 even though normally in accordance 256 with the provisions of section 64 (1) and (2) the work of assessment is to be done by the Income tax Officers of the area within which the assessees reside or carry on business	 power is given by section 5(7A) to the Commissioner of Income tax to transfer any case from one Income tax Officer subordinate to him to another and to the Central Board of Revenue to transfer any case from any one Income tax Officer to another. This is the administrative machinery which is set up for assessing the incomes of the assessees which are chargeable to income tax. There is	 therefore	 considerable force in the contention which has been urged on behalf of the State that section 5(7A) is a provision for administrative convenience. Nevertheless this power which is given to the Commissioner of Income tax and the Central Board of Revenue has to be exercised in a manner which is not discriminatory. No rules or directions having been laid down in regard to the exercise of that power in particular cases	 the appropriate authority has to determine what are the proper cases in which such power should be exercised having regard to the object of the Act and the ends to be achieved. The cases of the assessees which come for assessment before the income tax authorities are of various types and no one case is similar to another. there are complications introduced by the very nature of the business which is carried on by the assessees and there may be	 in particular cases	 such widespread activities and large ramifications or inter related transactions as might require for the convenient and efficient assessment of income tax the transfer of such cases from one Income tax Officer to another. In such cases the Commissioner of Income tax or the Central Board of Revenue	 as the case may be	 has to exercise its discretion with due regard to the exigencies of tax collection. Even though there may be a common attribute between the assesses whose case is thus transferred and the assessees; who continue to be assessed by the Income tax Officer of the area within which they reside or carry on business	 the other attributes would not be common. One assessee may 257 have such widespread activities and ramifications as would require his case to be transferred from the Income tax Officer of the particular area to an Income tax Officer of another area in the same State or in another State	 which may be called " X ". Another assessee	 though belonging to a similar category may be more conveniently and efficiently assessed in another area whether situated within the State or without it	 called " Y ". The considerations which will weigh with the Commissioner of Income tax or the Central Board of Revenue in transferring the cases of such assessee either to the area " X " or the area " Y " will depend upon the particular circumstances of each case and no hard and fast rule can be laid down for determining whether the particular case should 	 be transferred at 'all or to an Income tax Officer of a particular area. Such discretion would necessarily have to be vested in the authority concerned and merely because the case of a particular assessee is transferred from the Income tax Officer of an area within which he resides or carries on business to another Income tax Officer whether wit in or without the State will not by itself be sufficient to characterize the exercise of the discretion as discriminatory. Even if there is a possibility of discriminatory treatment of persons falling within the same group or category	 such possibility cannot necessarily invalidate the piece of legislation. It may also be remembered that this power is vested not in minor officials but in top ranking authorities like the Commissioner of Income tax and the Central Board of Revenue who act on the information supplied to them by the Income tax Officers concerned. This power is discretionary and not necessarily discriminatory and abuse of power cannot be easily assumed where the discretion is vested in such high officials. (Vide Matajog Dobey vs H. section Bhari(1)). There is moreover a presumption that public officials will discharge their duties honestly and in accordance with the rules of law. (Vide People of the State of (1) ; 	 932.33 258 New York vs John E. Van De Carr	 etc.(1) It has also been observed by this Court in A. Thangal Kunju Musaliar vs M. Venkitachalam Potti(2) with reference to the possibility of discrimination between assessees in the matter of the reference of their cases to the Income tax Investigation Commission that " It is to be presumed	 unless the	 contrary were shown	 that the 'administration of a particular law would be done I not with an evil eye and unequal hand ' and the selection made by the Government of the cases of persons to be referred for investigation by the Commission would not be discriminatory." This presumption	 however	 cannot be stretched too far and cannot be carried to the extent of always holding that there must be some undisclosed and unknown reason for subjecting certain individuals or corporations to hostile and discriminatory treatment (Vide Gulf	 Colorado	 etc. vs W. H. Ellis (3)). There may be cases where improper execution of power will result in injustice to the parties. It is pointed that it will be next to impossible for the assessee to challenge a particular order made by the Commissioner of Income tax or the Central Board of Revenue	 as the case may be	 as discriminatory because the reasons. which actuated the authority in making the order will be known to itself not being recorded in the body of the order itself or communicated to the assesse. This apprehension is	 however	 ill founded. Though the (1) ; (1905) 310 199 U.S. 552; (2) (1955)2 section C. R. 1196. (3) ; ; 41 L.Ed. 666. (4) [1955] I S.C.R. 140. 259 burden of proving that there is an abuse of power	lies on the assessee who challenges the order as discriminatory	 such burden is not by way of proof to the hilt. There are instances where in the case of an accused person rebutting a presumption or proving an. exception which will exonerate him from the liability for the offence with which he has been charged	 the burden is held to be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish (Vide Rex vs Carr Briant (1))	 or in the case of a detenue under the Preventive Detention Act seeking to make out a case of want of bona fides in the detaining authority	 the burden of proof is held not to be one which requires proof to the hilt but such as will render the absence of bona fides reasonably probable (Vide Ratanlal Gupta vs The District Magistrat of Ganjam also Brundaban Chandra Dhir Narendra vs The State of Orissa (Revenue Department) (3)). If	 in a particular 	case	 the assessee seeks to impeach the order of transfer is an abuse of power pointing out circumstances which prima facie and without anything more would make out the exercise of the power discriminatory qua him	 it will be incumbent on the authority to explain the circumstances under which the order has been made. The court will	 in that event	 scrutinize these Circumstances having particular regard to the object sought to be achieved by the enactment of section 5(7A) of the Act as set out in para 4 of the affidavit of Shri V. Gouri Shankar	 Under Secretary	 Central Board of Revenue	 quoted above	 and come to its own conclusion as to the bona fides of the order and if it is not satisfied that the order was made by the authorities in bona fide exercise of the power vested in them under section 5(7A) of the Act	 it will certainly quash the lame. (3) I.L.R. 1952 Cuttack 529	 573.260 record. The observations of Fazl Ali	 J.	 in The State of West Bengal vs Anwar Ali Sarkar	 (supra)	 at pages 309 310 that the authority will say " I am not to blame as I am acting under the Act " will not necessarily save the order from being challenged because even though the authority purported to act under the Act its action will be subject to scrutiny in the manner indicated above and will be liable to be set aside if it was found to be mala fide or discriminatory qua the assessee. Particular stress is laid on behalf of the petitioners on the observations at page 277 of the majority judgment in Bidi Supply Co. vs The Union of India	 (supra)	 which in the context of the omnibus wholesale order in question emphasized the substantial discrimination to which the assessee there had been subjected as compared with other bidi merchants who were similarly situated. The inconvenience and harassiment to which the assessee was thus put were considered to be violative of article 14 of the Constitution and it is urged that section 5 (7A) is unconstitutional in Boar as it is open to the Commissioner of Income tax or the Central Board of Revenue	 as the case may be	 to make an order of transfer subjecting the assessee to such inconvenience and harassment at their sweet will and pleasure. This argument of inconvenience	 however	 is not conclusive. There is no fundamental right in an assessee to be assessed in a particular area or locality. Even considered in the context of section 64 (1) and (2) of the Act this right which is conferred upon the assessee to be assessed in a particular area or locality is not an absolute right but is subject to the exigencies of tax collection. The difference	 if any	 created in the position of the assessee qua others who continue to be assessed by the Income tax Officer of the area in which they reside or carry on business is not a material difference but a minor deviation from the general standard and would	 therefore	 not amount to the denial of equal rights (Per Mukherjea	 J.	 as he then was	 in The State of West Bengal vs Anwar Ali Sarkar.	 (supra)	 at 261 p. 325)). There is also the further fact to be borne mind that this inconvenience to the assessee is sough to be minimised by the authority concerned transferring the case of such assessee to the Income tax Officer who is nearest to the area where it would be convenient for the assessee to attend and if	 on account of administrative exigencies	 this is not possible an the assessee requests that the examination of account or evidence to be taken should be in a place convenient to him	 by the Income tax Officer complying with the request of the assessee and holding the hearing at the place requested. We are bound to take the statement contained in para 5 of the affidavit of Shri.V. Gouri Shankar at its face value and if this is done as it should be	 the assessee will not be put to any inconvenience or harassment and the proper balance between the rights of the subject and public interest will be preserved. It is	 therefore	 clear that the power which is veste in the Commissioner of Income tax or the Central Board of Revenue	 as the case may be	 under section 5 (7A) of the Act is not a naked and arbitrary power	 unfettered	 unguided or uncontrolled so as to enable the authority to pick and choose one assessee out of those similarly circumstanced thus subjecting him to discriminatory treatment as compared with others who fall within the same category. The power is guided and controlled by the purpose which is to be achieved by the Act itself	 viz.	 the charge of income tax	 the assessment and collection thereof	 and is to be exercised for the more convenient and efficient collection of the tax A wide discretion is given to the authorities concerned for the achievement of that purpose	 in the matter of the transfer of the cases of the assessees from one Income tax Officer to another and it cannot be urged that such power which is vested in the authorities is discriminatory in its nature. There is a broad distinction between discretion which has to be exercised with regard to a fundamental right guaranteed by the Constitution and some other right which is given by the statute. If the statute deals with a right which is not fundamental in character 262 the statute can take it away but a fundamental right the statute cannot take away. Where	 for example	 a discretion is given in the matter of issuing licences for carrying on trade	 profession or business or where restrictions are imposed on freedom of speech	 etc.	 by a imposition of censorship	 the discretion must be controlled by clear rules so as to come within the category of reasonable restrictions. Discretion of that nature must be differentiated from discretion in respect of matters not involving fundamental rights such as transfers of cases. An inconvenience resulting from a change of place or venue occurs when any case is transferred from one place to another but it is not open to a party to say that a fundamental right has been infringed by such transfer. Ili other words	 the discretion vested has to be looked at from two points of view	 ViZ.	 (1) does it admit of the possibility of any real and substantial discrimination	 and (2) does it impinge on a fundamental right guaranteed by the Constitution? Article 14 can be invoked only when both these conditions are satisfied. Applying this test	 it is clear that the discretion which is vested in the Com missioner of Income tax or the Central Board of Reevenue	 as the case may be	 under section 5 (7A) is not at all discriminatory. It follows	 therefore	 that section 5 (7A) of the Act is not violative of article 14 of the Constitution and also does not impose any unreasonable restriction on the fundamental right to carry on trade or business enshrined in article 19 (1) (g) of the Constitution. If there is any abuse of power it can be remedied by appropriate action either under article 226 or under article 32 of the constitution and what can be struck down is not the provision contained in section 5 (7A) of the Act but the order passed thereunder which may be mala fide or violative	of these fundamental rights. This challenge of the vires of section 5 (7A) of the Act	 therefore	 fails. We may	 however	 before we leave this topic observe that it would be prudent if the principles of natural justice are	 followed	 where circumstances permit	 before any order of transfer under section 5 (7A) of the Act is made by the Commissioner of Income tax or the 263 Central Board of Revenue	 as the case may be	 and notice is given to the party affected and he is afforded a reasonable opportunity of representing his views on the question and the reasons of the order are reduced however briefly to writing. It is significant that when any question arises under section 64 as to the place of assessment and is determined by the Commissioner or Commissioners or by the Central Board of Revenue	 as the case may be	 the assessee is given an opportunity under section 64(3) of representing his views before any such question is determined. If an opportunity is given to the assessee in such case	 it is all the more 	surprising to find that	 when an order of transfer under section 5(7A) is made transferring the case of the assessee from one Income tax 'Officer to another irrespective of the area or locality where he resides or carries on business	 he should not be given such an opportunity. There is no presumption against the bona fides or the honesty of an assessee and normally the Income tax authorities would not be justified in refusing to an assessee a reasonable opportunity of representing his views when any order to the prejudice of the normal procedure laid down in section 64 (1) and (2) of the Act is sought to be made against him	 be it a transfer from one Income tax Officer to another within the State or from an Income tax Officer within the State to an Income tax Officer without it	 except of course where the very object of the transfer would be frustrated if notice was given to the party affected. If the reasons for making the order are reduced however briefly to writing it will also help the assessee in appreciating the circumstances which make it necessary or desirable for the Commissioner of Income tax or the Central Board of Revenue	 as the case may be	 to transfer his case under section 5(7A) of the Act and it will also help the court in determining the bona fides of the order as passed if and when the same is challenged in court as mala fide or discriminatory. It is to be hoped that the Income tax authorities will observe the above procedure wherever feasible. The next point of attack is that the orders which Were made by the Commissioner of Income tax or the 264 Central Board of Revenue	 as the case may be	 in these petitions are omnibus wholesale orders of transfer coming within the mischief of Bidi Supply Co. vs The Union of India	 (supra)	 and are	 therefore	 hit by the majority judgment in that case. The answer of the State is that the orders are valid by virtue of the explanation to section 5(7A) which was added by the Indian Income tax Amendment Act	 1956 (26 of 1956). The main structure of section 5(7A) was	 however	 maintained and the explanation was added thereto in order to expand the connotation of the word " case " which was used in section 5(7A). The manner in which this result was brought about is subject to criticism that the word 	case" was thus really equated with the word " file " and when a case of a particular assessee was transferred under section 5(7A) it was meant that his whole file would be transferred from one Income tax Officer to another. This inartistic mode appears	 however to be adopted by the supposed necessity of maintaining section 5(7A) in the form in which it stood but what we have got to see is whether the desired result has been achieved by adding the explanation in the manner in which it was done. Reading section 5(7A) and the explanation thereto	 it is clear that when any case of a particular asssssee which is pending before an Income tax Officer is transferred from that officer to another Income tax Officer whether within the State or without it	 all proceedings which are pending against him under the Act in respect of the same year as also previous years are meant to be transferred simultaneously and all proceedings under the 265 Act which may be commenced after the date of such transfer in respect of any year whatever are also included therei in so that the Income tax Officer to whom such case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against the assessee in respect of any year. The proceedings pending at the date of transfer can be thus continued but in the case of such proceedings the provision in regard to the issue of notices contained in the main body of section 5(7A) would apply and it would not be necessary to reissue any notice already issued by the Income tax Officer from whom the case is transferred. This provision applies to pending proceedings which have been transferred leaving unaffected the further proceedings which may be commenced against the assessee after the date of the transfer where fresh notices would have to be issued. It is	 however	 contended that the cases of the assessee which have been already closed in the previous years cannot be reopened by the Income tax Officer to whom the case of the assessee is thus transferred and the words " after the date of transfer in respect of any year " occurring at the end of the explanation are sought to be construed to mean " after the date of the transfer in respect of the year of transfer " thus rendering it incompetent to the Income tax Officer to whom the case is transferred to institute further proceedings in respect of cases of the assessee which have been already closed before the date of transfer. This contention is	 in our opinion	 unsound. The words used are " in respect of any year" and not " in respect of the year ". Moreover they are to be read with the preceding words "may be commenced " and not with the words "after the date of transfer". A proper reading of the explanation will be that the inclusive part thereof refers to all proceedings under the Act which may be commenced in respect of any year after the date of the transfer. The date of the transfer has relation only to the particular year in which the case of the assessee is thus transferred and to attach the words " in respect of any year " to the words " after 34 266 the date of transfer" do not make any sense. The words " in respect of any year " appropriately go with the words " which may commenced" and read in this juxtaposition render the inclusive part of the explanation susceptible of a proper meaning. The language of the explanation read in the manner suggested above is thus sufficient to dispel this contention of the petitioners. it follows	 therefore	 that the omnibus wholesale orders of transfer made against the petitioners by the Commissioner of Income tax or the Central Board of Revenue	 as the case may be	 are saved by the explanation to section 5(7A) and are not unconstitutional and void: It remains now to consider whether the individual orders against the petitioners are discriminatory in fact or are mala fide and in abuse of the power vested in the Commissioner of Income tax or the Central Board of Revenue	 as the case may be	 under section 5(7A) of the Act. Petitions Nos. 211 to 215 of 1956	 i.e.	 the Shiram Jhabarmull group	 may be dealt with in the first instance as they have a peculiar characteristic of their own. The orders complained against in these petitions were all made by the Commissioner of Income tax Central	 Calcutta	 on July 27	 1946	 and further proceedings were entertained against the petitioners by the Income tax Officer	 Central Circle IV	 Calcutta	 immeasurable thereafter. All these proceedings culminated in assessment orders and certificate proceedings under section 46(2) of the Act were also taken by the authorities against the petitioners for recovery of the tax so assessed before the advent of the Constitution. The question	 therefore	 arises whether these orders of transfer can be challenged by the petitioners as unconstitutional and void. It is settled that article 13 of the Constitution has no retrospective effect and if	 therefore	 any action was taken before the commencement of the Constitution in pursuance of the provisions of any law which was a valid law at the time when such action was taken	 such action cannot be challenged and the law under 267 which such action was taken cannot be questioned as unconstitutional and void on the score of its infringing the fundamental rights enshrined in Part III of the Constitution (See Keshavan Madhava Menon vs The State of Bombay(1)). The following observations of Das	 J.	 as he then was	 at p. 235 of that case	 may be appropriately referred to in this context: "As already explained	 article 13(1) only has the effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory and devoid of any legal force or binding effect only with respect to the exercise of fundamental rights on and after the date of the commencement of the Constitution. It has no retrospective effect and if	 therefore	 an act was done before the commencement of the Constitution in contravention of any law which	 after the Constitution	 becomes void with respect to the exercise of any of the fundamental rights	 the inconsistent law is not wiped out so far as the past act is concerned	 for	 to say that it is	 will be to give the law retrospective effect. . So far as the past acts are concerned the law exists	 notwithstanding that it does not exist with respect to the future exercise of fundamental rights." (See also Syed Qasim Razvi vs The State of Hyderabad(2) and Laxmanappa Hanumanthappa Jamkhandi vs Union of India(1)). It is clear	 therefore	 that the petitioners are not entitled to complain against the said orders of transfer dated July 27	 1946. 225 to 229 of 1956	 i.e.	 the Raichur group	 and Petitions Nos. 86	 87	 88	 111	 112 and 158 of 1956	 i.e.	 the Amritsar group	 all belong to the same category. In the first group	 there was an order of transfer on December 21	 1953	 passed by the Commissioner of Income tax	 Hyderabad	 transferring the cases of the petitioner from the Additional Income tax Officer	 Raichur	 to the Income tax	 Officer	 Special Circle	 Hyderabad. There was	 however	 an order passed by the Commissioner shortly before May 19	 1955	 transferring the cases of the petitioner from the Income tax (1) ; 	 235. (2) (3) ; 268 Officer	 Special Circle	 Hyderabad	 to the main Income tax Officer	 Raichur. The petitioner thus reverted to the Income tax Officer	 Raichur	 and it passes one 's imagination what possible argument he can urge on the score of inconvenience and harassment. The whole attitude of the petitioner is motivated by an intention to delay the payment of income tax legitimately due by him to the Revenue trying to take advantage of a mere technicality. In the second group	 there were orders passed by the Commissioner of Income tax transferring the cases of the petitioners from the Income tax Officer	 "AWard	 Amritsar	 or the Income tax Officer	 'F 'Ward	 Amritsar	 to the Income tax Officer	 Special Circle	 Amritsar. Both these officers were situated in the same building and under the same roof. The argument of inconvenience and harassment can	 under these circumstances	 be hardly advanced by them. There is moreover another feature which is common to both these groups and it is that none of the petitioners raised any objection to their cases being transferred in the manner stated above and in fact submitted to the jurisdiction of the Income tax Officers to whom their cases had been transferred. It was only after our decision in Bidi Supply Co. vs The Union of India	 (supra)	 was pronounced on March 20	 1956	 that these petitioners woke up and asserted their alleged rights	 the Amritsar group on April 20	 1956	 and the Raichur group on November 5	 1956. If they acquiesced in the jurisdiction of the Income tax Officers to whom their cases were transferred	 they were certainly not entitled to invoke the jurisdiction of this Court under article 32. It is well settled that such conduct of the petitioners would disentitle them to any relief at the hands of this Court (Vide Halsbury 's Laws of England '	 Vol. II	 3rd Ed.	 p. 140	 para 265; Rex vs Tabrum	 Ex Parte Dash(1); 0. A. 0. K. Lakshmanan Chettiar vs Commissioner	 Corporation of Madras and Chief Judge	Court of Small Causes	 Madras(2) ). The orders of transfer made by the Commissioner of Income tax or the Central Board of Revenue	 as the (1) (2) [1927] 1. L. R. 269 case may be	 against the three groups of petitioners	 viz.	 Sriram Jhabarmull group	 the Raichur group and the Amritsar group	 cannot	 therefore	 be challenged by them as unconstitutional and void This leaves two sets of petitioners	 the petitioners in Petitions Nos. 97 & 97 A of 1956 and the petitioners in Petitions Nos. 44/56 and 85/56. Petitions Nos. 97 & 97 A of 1956 : The petitioners are oilmill owners	 merchants and commission agents	 carrying on business at Sahibganj in the district of Santhal Parganas and have a branch at 97	 Lower Chitpur Road	 Calcutta. They were alleged to have concealed income exceeding Rs. 8 lakhs and indulged in business activities spread over a wide area resulting in large profits not disclosed in the books of account or in the various returns filed by them. After the judgment of this Court in Surajmull Mohta & Co. vs A. V. Viswanatha Sastri(2)	 about 320 cases referred to the Income tax Investigation Commission under section 5 (4) of Taxation on Income Investigation Commission Act (XXX of 1947) were affected and had to be reopened under section 34 (IA) of the Income tax Act. To dispose of these cases	 "since they involved many back years ' cases" quickly and promptly	 special circles without reference to area were created at Bombay and Calcutta	 because the existing circles	 whose hands were full	 could not take up this extra work. These 320 cases were distributed between these circles on the basis of the geographical area to which these assessees belonged. The petitioners belonged to Bihar and had a branch at Calcutta and their cases were	 therefore	 allotted to one of the Central Circles at Calcutta. Later on in October 1954	 this Court struck down section 5 (1) of the Taxation on Income Investigation Commission Act (XXX of 1947) in Meenakshi Mills Ltd. vs Viswanatha Sastri. (2 ) and as a result thereof cases referred under that section and pending with the (I) [1055] 1 S.C. R. 448. (2) [1955] I S.C. R. 787. 270 Income tax Investigation Commission on July 17	1954	 could not be preceded with under the provisions of that Act. These cases numbering about 470 had to be reopened under section 34 (1A) of the Income tax Act. The Government thought that as in the earlier lot of cases	 it would help speedier disposal of the cases	 if they were allotted to Income tax Officers appointed without reference to area to deal with the same. In addition to the circles already created in Bombay and Calcutta	 five more circles at Calcutta and 4 more circles at Bombay and 9 more circles at important centers such as Kanpur	 Ahmedabad	 Madras and Delhi were set up to deal with all these cases. As a result of the influx of these cases	 it was found that the 9 circles at Calcutta had about 280 cases of assessees belonging to Calcutta itself to dispose of and therefore cases not belonging to that area had to be taken out and assigned to one of the newly created circles	 Where the work load was low. It was found then that Central Circle VI had a lower work load compared to other circles and	 therefore	 the cases of the petitioners were transferred to the Income tax Officer	 Central Circle VI	 Delhi. Having regard to these circumstances which are disclosed in the affidavits of Shri V. Gouri Shankar	 Under Secretary	 Central Board of Revenue	 dated November 19	 1956	 and December 3	 1956	 it is clear that the transfer of the cases of the petitioners	 firstly	 from the Income tax Officer	 Special Circle	 Patna	 to the Income tax Officer	 Central Circle XI	 Calcutta	 and next	 from the latter officer to the Income tax Officer	 Central Circle VI	 Delhi	 were made as a matter of administrative convenience only. It further appear; from the said affidavits that the examination of accounts and the evidence was done at the places desired by the assessees in order to suit their convenience and the Income tax Officers were instructed accordingly. As a matter of fact the Income tax Officer	 Central Circle VI	 Delhi	 went to Sahibganj and examined the accounts there in the case of the petitioner No. 1 and when the assessee voluntarily requested the Income tax Officer to have 271 the examination done at Delhi (the assessee had then come to Delhi for some other work of his) the Income tax Officer promptly posted the case and examined the accounts. If these were the circumstances under which the cases of the petitioners were transferred from Patna to Calcutta and from Calcutta to Delhi and the petitioners were afforded all conveniences in the matter of the examination of their accounts and evidence	 there is no basis for the charge that the orders of transfer made against these petitioners were in any manner whatever discriminatory. Petitions Nos. 44 and 85 of 1956 The petitioner in Petition No. 44/56 is Shri A. L. Sud who originally belonged to Hoshiarpur district in Punjab and since 1948 resides and has his office in Calcutta. Bhagwan Das Sud as the karta thereof. This Hindu undivided family has been carrying on business at Hoshiarpur and at various other places like Bareilly	 Calcutta and Bombay. The said joint family of Bhagwan Das Sud & Sons was alleged to have evaded income tax to a large extent and had inter related transactions in respect of their dealings	 the petitioner being a copartner of the said joint family. It was	 therefore	 considered necessary in order to have a proper assessment of the petitioner 's income that his case also should be dealt with by the Income tax Officer assessing the joint family and the petitioner was informed that	 in the matter of hearing	 he would be put to least inconvenience. These were the circumstances under which his case was transferred from the Income tax Officer	 Survey Circle	 Calcutta	 to the Income tax Officer	 Special Circle	 Ambala	 by an order of the Central Board of Revenue dated June 29	 1955. The case of M/S. Bhagwan Das Sud & Sons	 petitioners in Petition No. 85/56; had already been 272 transferred by the Commissioner of Income tax from the Income tax Officer	 Hoshiarpur	 to the Income tax Officer	 Special Circle	 Ambala	 by an order under section 5(7A) of the Act dated October 20	 1953. The petitioners had their office at Hoshiarpur in Punjab but their activities were scattered in various parts of India some of them being in Assam	 Bombay	 Bareilly	 Calcutta and Kanpur in respect of the contracts they undertook with the Government and other parties. They were alleged to have concealed income assessable to income tax exceeding Rs. 30 lakhs and it was thought necessary to make proper investigation of their widespread activities resulting ' in extensive evasion of income tax. These were the circumstances under which their case was transferred to the Incometax Officer	 Special Circle	 Ambala	 as above. That officer	 however	 agreed to examine the accounts and evidence at Hoshiarpur itself to suit the convenience of the petitioners but the petitioners did not agree on the ground that their Advocate was to come from Delhi and therefore Ambala would suit them as well. The cases of both the petitioners thus came to be transferred from the respective Income tax Officers who used to assess them at Calcutta and Hoshiarpur respectively to the Income tax Officer	 Special Circle	 Ambala	 and all conveniences were afforded to them in the matter of the examination of their accounts and evidence. The argument of discrimination and inconvenience and harassment thus loses all its force and the orders of transfer made against them cannot be challenged as in any way discriminatory. It may be noted that in the last mentioned four petitions	 viz.	 Petitions Nos. 97 & 97 A of 1956 and Petitions Nos. 44/56 and 85/56	 the Central Board of Revenue or the Commissioner of Income tax	 as the case may be	 instructed the Income tax Officers concerned to minimise the inconvenience caused to the assessees and even proceed to their respective residences or places of business in order to examine the accounts and evidence. Inspite of the denials of the assessees in the affidavits which they filed in 273 rejoinder	 we presume that such facilities will continue to be afforded to them in the future and the inconvenience and harassment which would otherwise be caused to them will be avoided. A humane and considerate administration of the relevant provisions of the Income tax Act would go a long way in allaying the apprehensions of the assessees and if that is done in the true spirit	 no assessee will be in a position to charge the Revenue with administering the provisions of the Act with " an evil eye and unequal hand ". We have	 therefore	 come to the conclusion that there is no substance in these petitions and they should be dismissed with costs. There will	 be	 however	 one set of costs between respondents in each of the petitions and one set of costs in each group of these petitions	 viz.	 (1) Petitions Nos.97 & 97 A of 1956	 (2) Petitions Nos.44/56 and 85/56	 (3) Petitions Nos. 86/56	 87/56	 88/56	 111/56	 112/56 and 158/56	 (4) Petitions Nos.211 to 215 of 1956	 and (5) Petitions Nos. 225 to 229 of 1956.

These petitions on behalf of the assessees raised the common question as to the constitutionality of section 5(7 A) of the Indian Income tax Act	 which was raised but not decided by this Court in Bidi Supply Co. V. The Union of India	 ; Reliance was placed on the observations of Bose	 J. in his Minority judgment in that case and it was contended that the section read with the explanation	 subsequently added to it as a result of that decision	conferred arbitrary and uncontrolled powers of transfer on the Income tax Commissioner and the Central Board of Revenue	 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(1)(g) of the Constitution. It was further contended that the omnibus wholesale orders of transfer made without any reference to any particular case or without any limitation as to time were inconvenient and discriminatory and ran counter to the majority judgment in that case. The contention of the Central Board of Revenue	 supported by affidavits filed on its behalf	 was that the section was intended to minimize administrative inconvenience	 there was no discrimination after transfer because the same relevant provisions of the Act as applied to others similarly situated	 were applied after the transfer and any resulting inconvenience to the assessee was sought to be minimised by transferring his case either to the nearest area or	 where that was not feasible	 by examining his accounts or evidence	 if required by him	 at a place suited to his convenience and that the wholesale omnibus orders of transfer were covered by the explanation: Held	 that section 5(7A) of the Indian Income tax Act was a measure of administrative convenience	 was constitutionally valid and did not infringe any of the fundamental rights conferred by articles 14 and (19)(g) of the Constitution and the orders of transfer in question were saved by the explanation: to that section and. were constitutionally valid. 30 234 The right conferred on the assessee by section 64(1) and (2) of the Act was not an absolute right and must be subject to the primary object of the Act itself	 namely	 the assessment and collection of income tax	 and where the exigencies of tax collection so required	 the Commissioner of Income tax or the Central Board of Revenue had the power under section 5(7A) of the Act to transfer his case to some other officer outside the area where he resided or carried on business and any difference in his position created thereby as compared to that of others similarly situated would be no more than a minor deviation from the general standard and would not amount to a denial of equality before the law. This discretionary power vested in the Authorities by the section to override the statutory right of the assessee must be distinguished from the discretion that has to be exercised in respect of a fundamental right guaranteed by the Constitution and the two tests to judge whether it was discriminatory would be	 (I) whether it admitted of the possibility of any real and substantial discrimination and (2) whether it impinged on a fundamental right guaranteed by the Constitution and	 so judged	 the discretion vested in the Authorities by section 5(7 A) of the Act was not at all discriminatory nor did the section impose any unreasonable restriction on the fundamental right to carry on trade or business. Bidi Supply Co. vs The Union of India	 ; M.K. Gopalan vs The State of Madhya Pradesh	 (1955) I S.C.R.168 ; The State of West Bengal vs Anwar Ali Sarkay	 ; ; Dayaldas Kushiram vs Commissioner of Income tax	 (Central)		 I.L.R. ; Dayaldas Kushiram vs Commissioner of Income tax	 Central	 ; and Wallace Brothers & Co.	 Ltd. vs Commissioner of Income tax	 Bombay	 Sind & Baluchistan	 A.I.R. 1945 F.C. 9	 discussed. The explanation added to the section by the Amending Act XXVI Of 1956	 was intended to expand the connotation of the ' term 'case ' used in the section and included both pending proceedings as also other proceedings under the Act which might be commenced in respect of any year after the date of transfer and as such the orders in question were not unconstitutional or void. The Income Tax Authorities	 however	 must be held bound by the statements made in their affidavits and where an assessee could make out a prima facie case of a mala fide or discriminatory exercise of the discretion ' vested in them	 the Court will scrutinise the circumstances in the light of those statements and where necessary quash an abuse of the power under articles 226 and 32 Of the Constitution. Ratanlal Gupta vs The District Magistrate of Ganjam	 I.L.R. 1951 Cuttack 441 and Brundaban; Chandra Dhir Narendra vs 235 The State of Orissa (Revenue Department)	 I.L.R. 1952 Cuttack 529	 referred to. The Income tax Authorities should follow the rules of natural justice and	 where feasible	 give notice of the intended transfer to the assessee concerned in order that he may re_ resent his view of the matter and record the reasons of the transfer	 however briefly	 to enable the Court to judge whether such transfer was mala fide or discriminatory	 if and when challenged.