Dalveer Bhandari, J.— The petitioner has challenged the order passed by the Commissioner of Income Tax, Delhi-I dated 4.3.2002 holding that the Income Tax Officer, Ward 2(4) has jurisdiction to deal with the case. According to the petitioner Sub-section (2) of Section 120 of the Income-tax Act, 1961 (for short ‘the Act’) authorises the Central Board of Direct Taxes to delegate the powers to the Income Tax Authorities. The petitioner submitted that Section 120(4)(a) of the Act provides that the Central Board of Direct Taxes (for short ‘the CBDT’) may authorise any Director General or Director to perform such functions of any other Income Tax Authority as may be assigned to him by the Board.

2. The petitioner submitted that according to Clause (b) of Sub-section (4) of Section 120 of the Act the CBDT may empower the Director General of Chief Commissioner or Commissioner to issue orders in writing that the powers and functions conferred on, or as the case may be, assigned to, the Assessing Officer by or under this Act in respect of any specified area or persons or classes of persons or incomes of classes of income or cases or classes of cases, shall be exercised and performed by a Joint Commissioner or a Joint Director and where any order is made under this clause, references in any other provision of this Act, or in any rule made thereunder to the Assessing Officer shall be deemed to references to such Joint Commissioner or Joint Director.

3. According to the petitioner after the Notification No. 267 of 2001 dated 17.9.2001 came into force, only the Joint Commissioner of Income Tax can function as the Assessing Officer, and the Income Tax Officer has no jurisdiction also mentioned that the order passed by the Commissioner of Income Tax cannot supersede the statutory Notification dated 17.9.2001 The petitioner also submitted that the Commissioner of Income Tax grossly erred in relying upon the Instructions 5 and 6 of 2001 as these Instructions are neither statutory nor binding, but are in the nature of internal guidelines for the Income Tax Department, and are not for public or assessee and cannot prevail over the statutory notification.

4. To appreciate the controversy involved in the case in its proper perspective it is necessary to reproduce the Notification No. 267 of 2001 dated 17.9.2001 which reads as under:

“Notification No. 267 of 2001 dated 17th Sept., 2001.

In exercise of the powers conferred by Clause (b) of Sub-section (4) of Section 120 of the Income-tax Act, 1961 (43 of 1961), Central Board of Direct Taxes hereby directs that the Joint Commissioners of Income-tax or the Joint Directors of Income-tax shall exercise the powers and functions of the Assessing Officers, in respect of territorial area or persons or classes of persons or incomes or classes of income or cases or classes of cases, in respect of which such Joint Commissioner of Income-tax are authorised by the Commissioner of Income-tax, vide. Government of India, Central Board of Direct Taxes Notification No. S.O.732(E) dated 31st July, 2001 [published at (2001) 169 CTR (St.) 7], S.O 880(E) dated 14th September, 2001 [published at (2001) 170 CTR (St.) 3], S.O 881(E) dated 14th September, 2001 [published at (2001) 170 CTR (St.) 5], S.O 882(E) dated 14th September, 2001 [published at (2001) 170 CTR (St.) 10], S.O 883(E) dated 14th September, 2001 (published at (2001) 170 CTR (St) 13] published in the Gazette of India, Part-II, Section 3, Sub-section II, Extraordinary.

2. This notification shall come into force with effect from the date of publication in the Official Gazette.”

5. The said notification has been issued while exercising the powers under Clause (b) of Sub-section (4) of Section 120 of the Act. Therefore, we deem it desirable to go to the main source of powers which have been conferred by the statute. Section 120 of the Act reads as under:

“120. (1) Income-tax authorities shall exercise all or any of the powers and perform all or any of the functions conferred on, or, as the case may be, assigned to such authorities by or under this Act in accordance with such directions as the Board may issue for the exercise of the powers and performance of the functions by all or any of those authorities.

(2) The directions of the Board under Sub-section (1) may authorise any other income-tax authority to issue orders in writing for the exercise of the powers and performance of the functions by all or any of the other income-tax authorities who are subordinate to it.

(3) In issuing the directions or orders referred to in Sub-sections (1) and (2), the Board or other income-tax authority authorised by it may have regard to any one or more of the following criteria, namely:

(a) territorial area;

(b) persons or classes of persons;

(c) incomes or classes of income; and

(d) cases or classes of cases.

(4) Without prejudice to the provisions of Sub-sections (1) and (2), the Board may, by general or special order, and subject to such conditions, restrictions or limitations as may be specified therein,—

(a) authorise any Director General or Director to perform such functions of any other income-tax authority as may be assigned to him by the Board;

(b) empower the Director General or Chief Commissioner or Commissioner to issue orders in writing that the powers and functions conferred on, or as the case may be, assigned to, the Assessing Officer by or under this Act in respect of any specified area or persons or classes of persons or incomes or classes of income or cases or classes of cases, shall be exercised or performed by a Joint Commissioner or a Joint Director, and, where any order is made under this clause, references, in any other provision of this Act, or in any rule made thereunder to the Assessing Officer shall be deemed to be references to such Joint Commissioner or Joint Director by whom the powers and functions are to be exercised or performed under such order, and any provision of this Act requiring approval or sanction of the Joint Commissioner shall not apply.

(5) The directions and orders referred to in Sub-sections (1) and (2) may, wherever considered necessary or appropriate for the proper management of the work, require two or more Assessing Officers (whether or not of the same class) to exercise and perform, concurrently, the powers and functions in respect of any area or persons or classes of persons of incomes or classes of income or cases or classes of cases; and, where such powers and functions are exercised and performed concurrently by the Assessing Officers of different classes, any authority lower in rank amongst them shall exercise the powers and perform the functions as any higher authority amongst them may direct, and, further, references in any other provision of this Act or in any rule made thereunder to the Assessing Officer shall be deemed to be references to such higher authority and any provision of this Act requiring approval or sanction of any such authority shall not apply.”

(6) Notwithstanding anything contained in any direction or order issued under this section, or in Section 124, the Board may, by notification in the Official Gazette, direct that for the purpose of furnishing of the return of income or the doing of any other Act or thing under this Act or any rule made thereunder by any person or class of persons, the income-tax authority exercising and performing the powers and functions in relation to the said person or class of persons shall be such authority as may be specified in the notification.”

6. Advance copy of this petition was given to the learned Counsel appearing for the Income Tax Department and in pursuance to the same, Mr. Sanjiv Khanna, learned Senior Standing Counsel for the Income Tax Department appeared and submitted that the notification in question has been issued in consonance with Sub-section (4) of Section 120 of the Act and according to that, without prejudice to Section 120(1) and (2), the CBDT may by general or special order empower the Director General, Chief Commissioner or Commissioner to issue order in writing that powers and functions of an Assessing Officer in specified cases can be performed by Joint Commissioner or Joint Director. Mr. Khanna contended that this said notification was imperative so that the powers given to the concerned official can be exercised. Mr. Khanna submitted that the powers given by the CBDT to Commissioners of Income Tax under Section 120(4)(b) of the Act cannot be confused with the jurisdiction of Assessing Officers under Section 120(1) and (2) of the Act. Mr. Khanna further submitted that the term “Assessing Officer” defined in Section 2(7A) of the Act includes Assistant Commissioner, Deputy Commissioner or Income Tax Officer vested with relevant jurisdiction by virtue of directions or orders issued under Subsections (1) and (2) of Section 120 of the Act.

7. Mr. Khanna also submitted that the Joint Commissioner of Income Tax is not an Assessing Officer and normally assessment is to be done by an officer have jurisdiction over the assessee under Section 120(1) and (2) of the Act, but under Section 120(4)(b) powers can be given to the Director General or Director to perform such functions of any other Income Tax Authority as may be assigned to him by the CBDT. These powers are to be exercised by the Joint Commissioner or Joint Director in special cases. According to Mr. Khanna the said notification has been issued in consonance with the legislative intention of Section 120(4)(b), but issuance of the notification does not mean that the powers of the income tax authorities under Section 120(1) and (2) have been taken away. If the Section 120 is closely examined it clearly reveals that the powers under Section 120(4) are exercised without prejudice to the provisions of Sub-sections (1) and (2) of Section 120 of the Act.

8. Mr. Khanna contended that the CBDT and the Income Tax Authorities have been given wide powers and discretion to determine and decide, exercise and perform the functions of a particular authority under the Income Tax Act. Section 120 does not specify powers and functions of each Income Tax Authority. It authorises and gives powers to the Board/Income Tax Authority to decide and determine the jurisdiction. However, where the Legislature wanted that a particular power and function should be exercised by a specified authority, it has been specifically mentioned in the Act itself and in consonance with the legislative intention said notification was issued.

9. Mr. Khanna submitted that the wide discretion and flexibility in respect of various powers and functions under the Act were required for the administrative convenience and efficiency of the Department. The Department had to be given freedom to adjust the needs and requirements to meet exigencies of tax assessment and collection. Mr. Khanna submitted that an assessee does not have any fundamental right to be assessed by any particular Income Tax Authority/officer. Law does not given him any such right to determine and decide which Income Tax Authority should be his Assessing Officer. The only right an assessee has is that he should be assessed at the place where he carries on business or is residing. Mr. Khanna made reference to the notification issued by the CBDT under Section 120(1) and (2) dated 31.7.2001 Under the said notification sixteen Commissioners of Income Tax in Delhi have been given jurisdiction over various assessees depending upon area and classes of the assessees.

10. Mr. Khanna contended that some cases are of extremely complicated nature and senior officers have to be entrusted the task of carrying out assessments of those cases. He stated that merely entrusting a special case to the senior officer does not mean that powers under Section 120(1) and (2) shall not be exercised by the Income Tax Officers in all other cases. In other words, the jurisdiction of Assessing Officer under Section 120(1) and (2) cannot be confused with the powers of the Commissioner to appoint Joint Commissioner of Income Tax as Assessing Officer in specified categories of cases. The power under Section 120(4)(b) of the Act to appoint and authorise Joint Commissioners as Assessing Officers in specified cases is a special power and that is exercised for special cases. Ordinarily the jurisdiction is to be exercised by the Assessing Officer, who has jurisdiction over the assessee in terms of Section 120(1) and (2) of the Act. Mr. Khanna further submitted that the Legislature was conscious of the fact that in some complicated cases it may be necessary that a senior officer of the rank of the Joint Commissioner of Income Tax should do the assessment. Therefore, the Legislature has carved out an exception to the general rule by enacting Section 120(4)(b) of the Act.

11. We have heard learned Counsel for the parties at length and perused the relevant provisions of the Act. The Legislature in its wisdom has clearly spelt out that ordinarily the assessments have to be done by the Assessing Officers and in some exceptional or special cases looking to the gravity, intricacy and complexity of the case, the same can be given to the Joint Commissioner and he will become Assessing Officer in that specified case. By giving those powers to the Joint Commissioners of Income Tax in special and exceptional cases the Assessing Officers have not been divested of their powers to carry out assessments according to Section 120(1) and (2) of the Act. The language of Sub-section (4) of Section 120 is clear and unambiguous that those powers are to be exercised without prejudice to the provisions of Sub-sections (1) and (2) of Section 120 of the Act.

12. The impugned Notification dated 17.9.2001 had to be issued by the CBDT under Section 120(4)(b) of the Act to empower the Joint Commissioner to carry out assessments in some special cases. The said notification has been issued in terms of Section 120 of the Act. The Legislature has given freedom to the income tax authorities to distribute the work among various income tax authorities according to the nature and complexity of the cases, but ordinarily the powers of assessment are entrusted and exercised by the Assessing Officer.

13. The assessee cannot be given the discretion to choose its officer. The assessee cannot get a mandamus from the Court that the assessment should be carried out by a Joint Director in view of Section 120(4)(b). The Notification dated 17.9.2001 is in consonance with the intention of the Legislature.

14. These proceedings have been initiated by filing this petition only to delay the assessment proceedings pending before the Assessing Officer.

15. The writ petition being devoid of any merit is accordingly dismissed with costs which is quantified at Rs. 3,000/- to be paid to the Prime Minister's Relief Fund by the petitioner within three weeks from today.

Writ Petition dismissed with costs.