Judgement

Consolidated Appeals (Nos. 85 of 1935 and 1 of 1936) from two judgments of the High Court, one (August 29, 1933) passed on a reference under s. 66 of the Indian Income-tax Act, 1922, the other (September 19, 1934) upon an application under the Specific Relief Act, 1877.

The reference related to an assessment to income-tax made upon the respondent, the Bombay Trust Corporation, Ld., as agents of the Hong Kong Trust Corporation, Ld., registered and carrying on business in Hong Kong, for the year of assessment 1928-29. The question was whether there was any evidence upon which the income-tax authorities could in law find that in 1927 the Hong Kong company received from the Bombay company any sums as interest on money lent. The question referred to the High Court was " Whether there was any evidence to justify the finding of the Assistant Commissioner that for the year of assessment, profits and gains accrued or arose to the Hong Kong Trust Corporation through its business connection with the Bombay Trust Corporation.”

The proceedings under the Specific Relief Act were brought for an order (inter alia) that the Commissioner should refund and pay back to the Bombay company the tax which had been paid by

Law. Rep. 63 Ind. App. 408 ( 1935- 1936) Commnr. of I.T., Bombay v. Bombay Trust Corpn. Ltd

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the company pending the determination of the question referred, the High Court (Beaumont CJ. and Blackwell J.) having answered that question in the negative.

The facts appear from the judgment of the Judicial Committee.

On the application under the Specific Relief Act the High Court (Beaumont CJ. and Rangnekar J.) made an order directing the Commissioner to set aside the original assessment and to repay to the applicant the tax paid, with interest.

1936. June II, 12, and 15. Dunne K.C and Sir Thomas Strangman for the appellants. The respondent applied under the Specific Relief Act for an order in the nature of a mandamus upon the Commissioner to discharge the assessment and repay the money—to carry out the order of the High Court upon the reference. An order was made by the High Court directing repayment at once. The question arises as to the jurisdiction of the High Court to interfere in the matter at all. Sect. 106, sub-s. 2, of the Government of India Act, 1915 (5 & 6 Geo. 5, c. 61), it is submitted, withdraws from any original jurisdiction of the High Court any power to issue orders to the authorities who are entrusted with the administration of the revenue collections, and the order which has been passed by the High Court is one by which, practically, the Commissioner is being directed as to what he is to do. Further, it is quite clear that under s. 67 of the Indian Income-tax Act, 1922, no proceeding is permissible as lying against Government for anything done by the Officer in connection with the assess ment. In all these cases the onus is thrown upon the assessee to produce the evidence for the purpose of getting himself out of the claim to assess him, and to prove the circumstances under which he claims that his return is correct. [Sect. 45 (b), {c), (d), (e), (f), (g) and (h) of the Specific Relief Act, 1877, were read.] The appellants found on s. 45 (g) " to make any order on any other servant of the Crown, as such, merely to enforce the satisfaction of a claim upon the Crown.” [Reference was made to Alcock, Ashdown & Co. v. Chief Revenue-Authority, Bombay. (( 1923) L.

R. 50 I. A. 227, 232.)]

There is only one question in this case was there any evidence to justify the assessment ? The High Court have said that there was none, and on that the assessment has been set aside. The question then arises whether there is anything in the Act or the judgment of the High Court which could prevent the assessing officers from proceeding to tax this company afresh and proceeding with a new assessment. There is nothing. There is nothing to get rid of the original liability of the respondent to be assessed under this Act, and if in