JUDGMENT
1. By this writ petition, an order dated August 12, 1985, passed by the Commissioner of Income-tax, Central Circle III, Kanpur, under Section 264 of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), as well as the consequential assessment order dated August 28, 1985, passed by the Income-tax Officer is sought to be quashed. The order which was challenged before the Commissioner of Income-tax had been passed by the Income-tax Officer in proceedings under Section 144B of the Act. It was urged by counsel for the petitioner that as a result of Section 144B of the Act having been amended, the Income-tax Officer after October 1, 1984, had to pass an order on his own and not on the basis of any direction obtained from the Inspecting Assistant Commissioner. In the instant case, since the Income-tax Officer had passed the order after receiving the directions of the Inspecting Assistant Commissioner of Income-tax under Section 144B of the Act, on January 10, 1985, the order was apparently illegal, having been passed after October 1, 1984. According to counsel for the petitioner, the Commissioner of Income-tax committed a manifest error of law in not accepting his submission.
2. Having heard counsel for the petitioner, we find it difficult to agree with his submissions. The amending Act, whereby Section 144B of the Act was amended, is apparently not retrospective. In the instant case, it appears that the draft order was passed by the Income-tax Officer on January 7, 1984, and was soon thereafter referred to the Inspecting Assistant Commissioner of Income-tax for directions as contemplated by Section 144B of the Act, as it then stood. The order containing the directions of the Inspecting Assistant Commissioner of Income-tax is dated December 31, 1984, and seems to have been received, as already noticed above, by the Income-tax Officer on January 10, 1985. It was, as such, not a case in which the draft order had been passed by the Income-tax Officer after October I, 1984. In our opinion, in view of Section 6 of the General Clauses Act, in the absence of anything to the contrary in the amending Act, the legal proceedings pending before the Inspecting Assistant Commissioner of Income-tax did not become infructuous on the commencement of the amending Act and the Inspecting Assistant Commissioner was competent to give directions dated December 31, 1984. Likewise, the Income-tax Officer was also within his jurisdiction to pass the assessment orders consequent upon receipt of the said directions.
3. It was then urged that the finding recorded by the Commissioner of Income-tax that the addition of Rs. 4,60,000, being the value of the gold bar recovered from the locker jointly in the name of the petitioner and his wife on July 22, 1981, did not belong to the petitioner and was held on trust by his wife and the Commissioner of Income-tax has committed an error in holding that the petitioner was the owner of the said gold bar. In this connection, reliance has been placed on an affidavit said to have been filed by the wife of the petitioner asserting that the gold bar was held by her on trust. The finding recorded by the Commissioner of Income-tax that the gold bar in question belonged to the petitioner is essentially a finding of fact based upon appraisal of evidence and, in our opinion, does not call for any interference under Article 226 of the Constitution of India.
4. It has been urged that a letter on record purporting to have been sent by one Harnam Singh has not been taken into consideration, which supports the case of the gold bar being held by the petitioner's wife on trust. Having gone through the impugned order passed by the Commissioner of Income-tax, we are of the opinion that quite a number of valid circumstances have been pointed out by the Commissioner of Income-tax to repel the theory that the gold bar in question was held by the wife of the petitioner on trust and was not owned by the petitioner. Amongst others, reliance has been placed by the Commissioner of Income-tax on the own admission of the petitioner dated July 22, 1981, when the locker was opened. At that time, on being asked, the petitioner had unequivocally stated that the gold bar belonged to him. The case subsequently set up that the gold bar did not belong to the petitioner and was held by his wife on trust, appears to be an afterthought. The affidavit of the wife of the petitioner has been considered by the Commissioner of Income-tax and has not been disbelieved. As regards the letter of Harnam Singh, the plea that the said letter was filed before the Income-tax Officer does not find substantiated from the order of the said officer. At any rate, no material has been brought to our notice on the record of the present writ petition that there was any evidence produced on behalf of the petitioner in proof of the fact that the alleged letter was in the handwriting of Harnam Singh and was sent on the date on which it purports to have been sent. Indeed the copy of the statement of the petitioner filed as annexure 11 to the writ petition indicates that the petitioner's wife was made a trustee in regard to the gold bar in question by Sardar Deva Singh, grandfather of the petitioner in the year 1955. This statement further indicates that this trust was made orally. On the facts of the instant case, it is not possible to take the view that the finding of fact that the gold bar in question belonged to the petitioner as recorded by the Commissioner of Income-tax, is either perverse or suffers from any such error which may justify interference under Article 226 of the Constitution of India. The order dated August 12, 1985, passed by the Income-tax Officer has been challenged before us by counsel for the petitioner on these two grounds alone and we find no substance in any of them.
5. As regards the consequential assessment order passed on August 28, 1985, by the Income-tax Officer, Central Circle-Ill, Kanpur, it has been urged by counsel for the petitioner that the said order is in contravention of the directions contained in the order of the Commissioner of Income-tax dated August 12, 1985, which has been found by us not to be suffering from any error which may justify interference in this writ petition. The consequential order of the Income-tax Officer also would, as such, be unassailable in so far as it is consistent with the said order of the Commissioner of Income-tax. We have not found it fit to go into the question whether the assessment order passed by the Income-tax Officer on August 28, 1985, is really inconsistent with or in contravention of the order of the Commissioner of Income-tax, inasmuch as, if that is the case of the petitioner, he has the statutory remedy to challenge the said order by way of appeal, etc., under the Act and interference with the order of assessment under Article 226 of the Constitution of India would not be justified. If authority were needed for this proposition, reference may be made to the case of Titaghur Paper Mills Co. Ltd. v. State of Orissa [1983] 142 ITR 663 (SC).
6. In the result, we find no merit in this writ petition, which is accordingly dismissed.