John Beaumont, C.J. - (1.)THIS is an application asking us to direct the Commissioner of Income-tax, (Central), to state a case. The learned Commissioner has refused to state a case, not because he denies that a point of law arises, but because he considers that he has no jurisdiction to deal with the matter. That is the question which we must decide on this application.
(2.)THE assessee was assessed on March 31, 1939, by the Income-tax Officer, Special Circle, and on the next day the amendments to the Indian Income-tax Act came into operation. On April 15 a demand for payment was made on the assessee. He applied under Section 27 of the Act to get the assessment set aside, but his application was rejected. On April 18 the Central Board of Revenue, acting under Section 5(2) of the Act, as amended, transferred the case of the assessee by name to the Commissioner of Income-tax (Central). Now, this Court held in Dayldas Kushiram v. Commissioner of Income-Tax, Central1, that cases transferred under Section 5(2) of the Act could not include assessments already completed. That decision binds us, and it follows that the assessment, which was completed on March 31, 1939, was not included in the transfer of the assessee's case; any further proceedings relating to the assessee were validly transfered, but the completed assessment was not transferred.
On May 10 the assessee appealed against his assessment, and his appeal was admittedly disposed of by the Appellate Assistant Commissioner, Sections I to VI, A-Range, Bombay. In my view, that Assistant Commissioner would have been the tribunal to hear the appeal, whether the transfer made on April 18 embraced this assessment or not, so that his entertainment of the appeal is a neutral act. The original assessment was made by the Income-tax Officer, Special Circle, and by virtue of notifications 46 and 47, published in the Gazette of India of June 3 and 10, 1939, "Sections I to VI, (Central)" were in effect substituted for "Special Circle", and by Notification of February 24, 1940, the Central Board of Revenue directed that the Appellate Assistant Commissioner of Income-tax, Bombay, "A" Range, should perform his functions in respect of assessees who had preferred appeals against the assessments made or orders passed by the Income-tax Officer, Special Circle, Bombay, and whose appeals were pending on June 3, 1939. That includes the appeal of the present assessee. If the case had been properly transferred to the Commissioner of Income-tax (Central), there is no doubt that the appeal would have been heard by the Assistant Commissioner, Bombay, A-Range, dealing with Sections I to VI (Central), which included all cases transferred to the Commissioner of Income-tax (Central). If it was not transferred, it seems to me that the same gentleman must have heard the appeal under the notification of February 24, 1940. The question, therefore, is, whether the Assistant Commissioner heard the appeal as an officer subordinate to the Commissioner of Income-tax, Bombay Presidency, Sind and Baluchistan, that is to say, the local Commissioner, or whether he heard it as an officer subordinate to the Commissioner of Income-tax (Central) under Section 5(7).

Now, under Section 5(2) of the Act, the Commissioner of Income-tax (Central) can only deal with cases which had been transferred to him, and that must mean validly transferred to him. Therefore, one comes back to the question whether the assessment of March 31, 1939, had been validly transferred to the Commissioner of Income-tax (Central), and, as I have said, on the authority of the case decided by this Court, we must hold that it had not been transferred. If that is so, the Commissioner of Income-tax (Central) has no jurisdiction to entertain this case. If that is so, it may follow that under Section 5(7) the Commissioner of Income-tax, Bombay Presidency, Sind and Baluchistan, has jurisdiction to state a case under Section 66(2), but we are not concerned with that. All we have to determine is whether the Commissioner of Income-tax (Central) has jurisdiction to state a case under Section 66(2); and, in my opinion, if this assessment of the assessee has not been validly transferred to such Commissioner, he cannot state a case, and he has no jurisdiction to entertain the matter at all. That was the view he took, and as we agree with him that he has no jurisdiction to state a case, we cannot order him to do so.

(3.)THE petition, therefore, must be dismissed with costs. Kania, J.
Two points arise for consideration on this application. (1) Whether, after the assessment was made on March 31, 1939, the order transferring the case to the Commissioner of Income-tax (Central) by the Central Board of Revenue, and thereafter by the order of the Commissioner of Income-tax (Central) to the Income-tax Officer (Central) was valid in law, having regard to the fact that the assessment order was made before the amended Income-tax Act of 1939 came into operation. (2) If that transfer was invalid, whether the decision of the Appellate Assistant Commissioner, as given, was in his capacity as a subordinate to the Commissioner of Income-tax, Bombay Presidency, Sind and Baluchistan, or as a subordinate to the Commissioner of Income-tax (Central).