Appeal from Original Order No. 281 of 1963

Decided on December 8, 1964

The Judgment of the Court was delivered by

Bose, C.J:— This is an appeal from an order of Banerjee J. discharging a rule issued under article 226 of the Constitution.

2. The appellant alleges that she carries on business, inter alia, in money-lending, speculation in bullion and shares and investment in shares and other commodities under the name and style of Shankar & Co., at Ramrajatola, Santragachi, in the District of Howrah. In January, 1961, the appellant filed returns of her income for the assessment years 1952-53 to 1960-61. The Income-tax Officer, D-Ward, Howrah, completed the assessments of income of the appellant in respect of the said years under section 23(3) of the Indian Income-tax Act, 1922, and issued the assessment orders in respect thereof on the 7th February, 1961. The Income-tax Officer found that the sources of income of the assessee during the accounting years were income from interest from investments and speculation in shares and silver and/or other sources for which no bank account nor any proper books of accounts were kept by the assessee and the income returns had been based on estimate. In the assessment proceedings, the appellant was represented by one Sri Bagchi, an advocate— an authorised representative of the appellant—and after hearing this advocate and discussing with him in detail certain particulars, the Income-tax Officer had completed the assessments and issued the assessment orders. On the very same date—7th February, 1961—the Income-tax Officer, respondent No. 2, also issued notices of demand under section 29 of the Act of 1922 in respect of the said assessment orders.

3. On the 25th January, 1963, the appellant was served with a notice dated the 24th January, 1963, issued by respondent No. 1, Commissioner of Income-tax, West Bengal, purporting to be under section 33B of the Indian Income-tax Act, 1922, alleging that respondent No. 1 had called for and examined the records of the appellant's case in respect of the assessment years 1952-53 to 1960-61 and other connected records and it appeared to him that the orders of assessment passed by the Income-tax Officer, “D” Ward, Howrah, on the 7th February, 1961, were erroneous in so far as they were prejudicial to the interests of the revenue for the following amongst other reasons:

“Enquiries made have revealed that no business as alleged was carried on from the address declared in the returns. Also the said Income-tax Officer was not justified in accepting the initial capital, the acquisition and sale of jewellery, the income from, business, gift made by you (the appellant), etc. without any enquiry or evidence whatsoever” and the concluding paragraph of the said notice was as follows:

“I, therefore, propose to pass such orders thereon as the circumstances of the cases justify after giving you an opportunity of being heard under the powers vested in me under section 33B of the Income-tax Act, 1922. The cases will be heard at 11 a.m on 1st February, 1963, at my above office when you are requested to produce the necessary evidence in support of your contentions. Objections in writing accompanied by necessary evidence, if any, received on or before the appointment for personal hearing will also be duly considered.

Please note that no adjournment of the hearing will be granted.

Yours faithfully,

Sd/- F.H Vallibhoy,

24-1-63.

Commissioner of Income-tax,

West Bengal.”

4. On the 31st January, 1963, the appellant through her solicitors, Messrs. Khaitan & Co., wrote a letter to the Commissioner of Income-tax asking the Commissioner to recall or cancel the notice dated 24th January, 1963, and to refrain from taking any steps thereunder. It is stated in this letter that the notice served was bad in law and illegal and void ab initio, inter alia, on the following grounds:

“(1) that the assessments in question had been completed before the Income-tax Act, 1961, came into force and there were no proceedings pending relevant to those years at the time of the commencement of the Act of 1961 and, as section 33B of the old Act had been repealed by section 297 of the Act of 1961, provisions of section 33B of the Act of 1922 could not be applied to the orders of assessment in question;

(2) that the Income-tax (Removal of Difficulties) Order, 1962, issued under section 298 of the Income-tax Act, 1961, was ultra vires;

(3) that the notice is absolutely vague, as it does not indicate in what respects the said orders of assessments are erroneous and/or prejudicial to the revenue, and further, no particulars of the alleged enquiry had been stated in the notice.”

5. This letter also gave intimation to the Commissioner that failing compliance with the requisition contained in the letter, the appellant would be compelled to move the High Court at Calcutta for appropriate reliefs.

6. As the Commissioner of Income-tax did not take any steps to comply with the requisition contained in the letter, the appellant moved this court under article 226 of the Constitution for appropriate writs for the quashing of the records and proceedings relating to the notice dated 24th January, 1963, and for direction upon the respondents to forbear from giving effect to that notice or taking any steps thereunder. The rule nisi was issued on that date limited to grounds (a), (b), (c), (d) and (e) of paragraph 17 of the petition, which are as follows:

“(a) The First Act having been repealed by the Second Act which came into force on the 1st April, 1962, respondent No. 1 had no power, authority or jurisdiction to initiate the said proceedings under section 33B of the First Act.

(b) section 6 of the General Clauses Act in no way authorises the initiation of the said proceedings inasmuch as no steps were taken in respect thereof when the First Act was in force and/or prior to its repeal.

(c) The powers under section 298 of the Second Act can only be exercised in respect of the matters dealt with by section 297 of the Second Act which do not deal with proceedings under section 33B of the First Act at all.

(d) Alternatively, the powers under section 298 of the Second Act can only be exercised in case of any difficulty arising in giving effect to the provisions of the Second Act and not for the purpose of starting fresh proceedings under section 33B of the First Act.

(e) In still further alternative the powers under section 298 of the Second Act cannot be exercised in any manner inconsistent with the provisions thereof.”

7. In order to determine the questions involved in this appeal, it will be convenient at this stage to set out the relevant portions of sections 297 and 298 of the Income-tax Act, 1961, and the Income-tax (Removal of Difficulties) Order, 1962, and also section 6 of the General Clauses Act, 1897, and section 33B of the Indian Income-tax Act, 1922.

“297. (1) The Indian Income-tax Act, 1922, is hereby repealed.’

(2) Notwithstanding the repeal of the Indian Income-tax Act, 1922 (hereinafter referred to as the repealed Act),—

(a) Where a return of income has been filed before the commencement of this Act by any person for any assessment year, proceedings for the assessment of that person for that year may be taken and continued as if this Act had not been passed;

(b) Where a return of income is filed after the commencement of this Act otherwise than in pursuance of a notice under section 34 of the repealed Act by any person for the assessment year ending on the 31st day of March, 1962, or any earlier year, the assessment of that person for that year shall be made in accordance with the procedure specified in this Act;

(c) Any proceeding pending on the commencement of this Act before any income-tax authority, the Appellate Tribunal or any court, by way of appeal, reference or revision, shall be continued and disposed of as if this Act had not been passed.

(d) Where in respect of any assessment year after the year ending on the 31st day of March, 1940,—

(i) a notice under section 34 of the repealed Act had been issued before the commencement of this Act, the proceedings in pursuance of such notice may be continued and disposed of as if this Act had not been passed;

(ii) any income chargeable to tax had escaped assessment within the meaning of that expression in section 147 and no proceedings under section 34 of the repealed Act in respect of any such income are pending at the commencement of this Act, a notice under section 148 may, subject to the provisions contained in section 149 or section 150, be issued with respect to that assessment year and all the provisions of this Act shall apply accordingly…

(j) Any sum payable by way of income-tax, super-tax, interest, penalty or otherwise under the repealed Act may be recovered under this Act, but without prejudice to any action already taken for the recovery of such sum under the repealed Act….

“298. Power to remove difficulties.—(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by general or special order, do anything not inconsistent with such provisions which appears to it to be necessary or expedient for the purpose of removing the difficulty.

(2) In particular, and without prejudice to the generality of the foregoing power, any such order may provide for the adaptations or modifications subject to which the repealed Act shall apply in relation to the assessments for the assessment year ending on the 31st day of March, 1962, or any earlier year.”

8. Clauses (2), (3) and (4) of the Income-tax (Removal of Difficulties) Order, 1962, are as follows:

“(2) Registration and refund proceedings to be regarded as part of assessment proceedings.—For the purposes of clauses (a) and (b) of sub-section (2) of section 297 of the Income-tax Act, 1961 (XLIII of 1961) (hereinafter referred to as the repealing Act), proceedings relating to registration of a firm or a claim for refund of tax shall be regarded as part of the proceedings for the assessment of the person concerned for the relevant assessment year.

(3) Completion of assessments in cases covered by section 297(2)(b) of the repealing Act.—In cases covered by clause (b) of sub-section (2) of section 297 of the repealing Act, the assessment shall be made, inter alia, in accordance with the procedure specified in the following sections of the repealing Act, in so far as they may be relevant for this purpose:

Sections 131 to 136, 140 to 147, 153 [except sub-section (2) and clause (iii) of sub-section (3)], 156 to 158, 185,187 to 189, 282 to 284 and 288.

(4) Appeal, reference or revision proceedings in respect of orders passed under the repealed Act.—(1) Proceedings by way of the first or subsequent appeals, reference or revision in respect of any order made under the Indian Income-tax Act, 1922 (hereinafter referred to as the repealed Act), shall be instituted and disposed of as if the repealing Act had not been passed.

(2) Any such proceeding instituted under the repealing Act after the 31st day of March, 1962, and before the date of this order shall be deemed to have been instituted under the repealed Act and shall be disposed of as if the repealing Act had not been passed:

Provided that if any such proceeding has been disposed of before the date of this order under any provision of the repealing Act, it shall be deemed to have been disposed of under the corresponding provision of the repealed Act and any appeal, reference or revision in respect of the proceedings so disposed of shall be instituted and disposed of as if the repealing Act had not been passed.”

9. section 6 of the General Clauses Act is as follows:

“6. Effect of repeal.—Where this Act or any Central Act or regulation made after the commencement of this Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not—

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or regulation had not been passed.”

10. Section 33B of the Act of 1922 is as follows:

“33B. (1) The Commissioner may call for and examine the record of any proceeding under this Act and if he considers that any order passed therein by the Income-tax Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such enquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment.

(2) No order shall be made under sub-section (1)—

(a) to revise an order of reassessment made under the provisions of section 34; or

(b) after the expiry of two years from the date of the order sought to be revised.”

11. The first contention raised on behalf of the appellant is that the Commissioner of Income-tax had no jurisdiction to invoke the provisions of section 33B of the Indian Income-tax Act, 1922, as the said section had ceased to be in force after it was repealed by sub-section (1) of section 297 of the Income-tax Act, 1961 (Act XLIII of 1961), which came into force on the 1st April, 1962, and it is not saved by any of the saving clauses introduced in sub-section (2) of section 297. The further contention is that section 6 of the General Clauses Act, 1897, is also not available in this case. It appears to me that the first contention has no force. In the instant case the return of income had been filed before the commencement of the Act of 1961, and so proceedings for the assessment of the person filing the return in respect of the relevant year can be taken and continued under the provisions of the Act of 1922, even after the coming into force of the Act of 1961, by virtue of the express terms of clause (a) of sub-section (2) of section 297. The provisions for assessment are contained in Chapter IV of the Act of 1922, and section 33B finds place in this Chapter and the expression “proceedings for the assessment” indicates that any of the proceedings relating to assessment as contemplated in Chapter IV can be initiated and continued under clause (a) of sub-section (2) of section 297 including the proceeding by way of revision under section 33B of the Act. It has been argued on behalf of the appellant that the expression “proceedings for the assessment” has reference to the original assessment proceedings initiated for the first time after a return is filed and it does not cover proceedings by way of appeal, reference or revision against an order of assessment passed by the Income-tax Officer after completion of the assessment, inasmuch as clause (c) of sub-section (2) of section 297 deals expressly with appeal, reference and revision and so it could not have been intended by the legislature that cases of appeal, reference and revision would also be covered by clause (a). The short answer to this argument is that clause (c) deals with proceedings by way of appeal, reference and revision pending at the commencement of the Act of 1961. In other words, clause (c) is limited to pending appeals, references and revisions. It is well-known that when the law is altered during the pendency of an action or a proceeding, the rights of the parties are decided according to the law as it existed when the action or proceeding had begun. By enacting clause (c) of sub-section (2) of section 297, the legislature has taken care to declare in express terms that the new Act of 1961 will not affect pending proceedings by way of appeal, reference or revision, but such proceedings will be continued and disposed of according to the provisions of the old Act of 1922. But merely because clause (c) has been inserted in section 297(2), it does not lead to the conclusion that thereby the scope of clause (a) has been restricted to the proceeding for original assessment. The new definition of the word “assessment”, which has been introduced by the Act of 1961 in section 2(8), provides that, unless the context otherwise requires, “assessment” includes “reassessment” and the language of section 33B makes it abundantly clear that, as a result of the action taken under this section by the Commissioner, there may be enhancement or modification of the original assessment or there may be a proceeding for a fresh assessment if the Commissioner in exercise of his power of revision cancels the original assessment and directs a fresh assessment. Thus, as the procedure laid down in section 33B is a mode of securing a reassessment or of modifying or enhancing the original assessment, the section clearly embodies a “proceeding for the assessment” as contemplated in clause (a) of sub-section (2) of section 297. It seems to me that the expression “proceedings for the assessment” in clause (a) has a very comprehensive or wide connotation and it embraces within its scope the various proceedings relating to assessment as envisaged in Chapter IV of the Act of 1922, including the proceedings by way of appeal, reference and revision in a case where the return of income has been filed before the commencement of the Act of 1961. But curiously enough the saving clauses make no provision where no return of income has at all been filed before the commencement of the Act of 1961. This may be a lacuna in the Act of 1961, but the court is not concerned with such omission which is a matter for the legislature. It is not the business of the court to remove ambiguities or to fill up gaps in interpreting a statute in order to widen its applicability.

12. It may also be pointed out that the word “assessment” has been held to have been used in the Income-tax Act in a very comprehensive sense.

13. The Judicial Committee of the Privy Council in the case of Commissioner of Income-tax v. Khemchand Ramdas [1938] 6 I.T.R 414, 416 P.C. observed:

“One of the peculiarities of most Income-tax Acts is that the word ‘assessment’ is used as meaning sometimes the computation of income, sometimes the determination of the amount of tax payable and sometimes the whole procedure laid down in the Act for imposing liability upon the taxpayer.”

14. The Supreme Court in the case of C.A Abraham… v. Income-Tax Officer, Kottayam…. [1961] 41 I.T.R 425, 430; [1961] 2 S.C.R 765., in interpreting the expression “assessment” as occurring in section 44 of the Indian Income-tax Act, observed:

“The expression ‘assessment’ used in these sections (provisions of Chapter IV of the Indian Income-tax Act) is not used merely in the sense of computation of income and there is in our judgment no ground for holding that when by section 44 it is declared that the partners or members of the association shall be jointly and severally liable to assessment, it is only intended to declare the liability to computation of income under section 23 and not to the application of the procedure for declaration and imposition of tax liability and the machinery for enforcement thereof…… By section 28, the liability to pay additional tax which is designated penalty is imposed in view of the dishonest or contumacious conduct of the assessee.”

15. In the case of Commissioner of Income-tax v. Bhikaji Dadabhai & Co. [1961] 42 I.T.R 123; [1961] 3 S.C.R 923., the question arose before the Supreme Court whether by reason of the repeal of the Hyderabad Income-tax Act by the Finance Act of 1950, the power to impose penalty in respect of the years preceding the date of repeal was lost. Section 13(1) of the Finance Act of 1950, so far as it is relevant, provided as follows:

“If immediately before the 1st day of April, 1950, there is in force in any Part B State…… any law relating to income-tax or super-tax….. that law shall cease to have effect except for the purposes of the levy, assessment and collection of income-tax and super-tax in respect of any period not included in the previous year for the purposes of assessment under the Indian Income-tax Act, 1922…..”

16. After referring to the previous decisions bearing on the interpretation of the word “assessment”, the Supreme Court held that the imposition of penalty was a necessary concomitant or incident of the process of assess ment, levy and collection of tax and, hence, proceedings for imposing penalty taken under section 40 of the Hyderabad Income-tax Act could be continued after the enactment of section 13(1) of the Finance Act of 1950.

17. It will thus be seen that the word “assessment” has been used in the Income-tax Act in a very comprehensive sense and the expression “proceedings for the assessment” occurring in clause (a) of sub-section (2) of section 297 is wide enough to bring within its ambit the power of revision contained in section 33B of the Act of 1922.

18. Now it has been argued on behalf of the appellant that if the word “assessment” has been used in clause (a) in such a comprehensive sense so as to include the entire machinery of assessment, then there was no point in enacting special or express saving clauses relating to reassessment under section 34 of the Act of 1922 and relating to imposition of penalty as contained in clause (d) and clause (f) of sub-section (2) of section 297 respectively. The answer to this is that these provisions have been inserted by way of abundant caution; and in order to meet anomalies and difficulties like these created by the new Act of 1961 that precaution was taken to enact a section like section 298 empowering the Central Government to promulgate general or special orders making provisions for removal of such difficulties and in order to remove such difficulties that the Income-tax (Removal of Difficulties) Order, 1962, was promulgated and clauses (2), (3) and (4) were inserted in that Order and sub-clause (1) of clause (4) of the Order of 1962 has made express provisions to the effect that proceedings by way of appeal, reference or revision in respect of any order made under the Indian Income-tax Act, 1922, can be instituted and disposed of as if the repealing Act had not been passed.

19. But it is to be pointed out that the vires of clause (4) of the Income-tax (Removal of Difficulties) Order, 1962, has been challenged before us on the ground that such a provision is plainly beyond the power of the Central Government as conferred upon it by section 298 of the Income-tax Act, The submission of the counsel for the appellant is that clause (4) is inconsistent with section 297 of the Act and it has sought to fill up a lacuna, which existed in that section. But if my interpretation of section 297(2)(a) is correct and the “proceedings for the assessment” are wide enough to include the proceedings by way of appeal, reference and revision, which are different steps in the machinery of assessment, then what clause (4) has done is simply to make explicit what was implicit in clause (a) and it is with the object of removing the doubt or difficulty, if any, existing in respect of the construction of clause (a) of section 297(2) that a specific provision like clause (4) was introduced in the Removal of Difficulties Order, In this view of the matter it must be held that there is no force in the criticism or challenge of the learned counsel for the appellant that clause (4) is inconsistent with the provisions of section 297 or that by enacting such a provision the Central Government was not purporting to give effect to the provisions of the Act or was doing anything inconsistent with the provisions of the Act. That the power conferred by section 298 upon the Central Government is very wide in its amplitude will be clear by a reference to the decision of the Judicial Committee in the case of King Emperor v. Sibnath Banerji. In that case the question arose whether rule 26 of the Defence of India Rules, which was enacted under the rule-making power conferred by section 2(1) of the Defence of India Act, 1939, as amended by section 2 of the Defence of India (Amendment) Act, 1940, was valid, and whether the decision of the Federal Court in the case of Keshav Talpade v. King Emperor was correct or not. The Judicial Committee observed as follows at pages 258-259:

“Their Lordships are unable to agree with the learned Chief Justice of the Federal Court on his statement of the relative positions of subsections (1) and (2) of section 2 of the Defence of India Act and counsel for the respondents in the present appeal was unable to support that statement or to maintain that rule 26 was invalid. In the opinion of their Lordships, the function of sub-section (2) is merely an illustrative one; the rulemaking power is conferred by sub-section (1), and the ‘Rules’ which are referred to in the opening sentence of sub-section (2) are the Rules which are authorised by, and made under, sub-section (1); the provisions of subsection (2) are not restrictive of sub-section (1), as indeed is expressly stated by the words ‘without prejudice to the generality of the powers conferred by sub-section (1).’ There can be no doubt—as the learned judge himself appears to have thought—that the general language of sub-section (1) amply justifies the terms of rule 26 and avoids any of the criticisms which the learned judge expressed in relation to sub-section (2). Their Lordships are, therefore, of opinion that Talpade's case was wrongly decided by the Federal Court, and that rule 26 was made in conformity with the powers conferred by sub-section (1) of section 2 of the Defence of India Act.”

20. The same observations are, in my view, applicable in interpreting sub-sections (1) and (2) of section 298. Under this section the Central Government may pass any order to resolve any difficulty that may arise in implementing the provisions of the Act of 1961. The only limitation put upon this power as is clear from sub-section (1) of section 298 is that the order that may be passed by the Central Government, whether it is a general or a special order, should not be inconsistent with the provisions to implement which the same is passed. Sub-section (2) of section 298 is illustrative and makes express provision authorising the Central Government to make provision, in such general or special order, as is contemplated in sub-section (1), for adaptations and modifications subject to which the Act of 1922 shall apply in relation to the assessment for the assessment year ending on 31st March, 1962, or any earlier year. Therefore, the contention of the learned counsel for the appellant challenging the vires of clause (4) of the Income-tax (Removal of Difficulties) Order, 1962, must be rejected.

21. In view of these findings on the question of construction of clause (a) of sub-section (2) of section 297 of the Act and as to the vires of clause (4) of the Income-tax (Removal of Difficulties) Order, 1962, it is not necessary to express any definite opinion on the point whether section 6 of the General Clauses Act, 1897, is available for the purpose of interpreting the provisions of the Act of 1961.

22. But our attention was drawn to the decision of the Supreme Court in the case of Indira Sohanlal v. Custodian Of Evacuee Property, Delhi & Others, where it has been pointed out that it cannot be stated as a broad proposition that section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also, unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law. The question before the Supreme Court was as to the true interpretation of sub-section (3) of section 58 of the Administration of Evacuee Property Act, 1950, which purported to repeal the Administration of Evacuee Property Ordinance, 1949, both in negative and in positive terms. The Supreme Court in interpreting such a provision has observed that where the repealing section of the fresh enactment which purports to, indicate the effect of the repeal of previous matters provides for the operation of the previous law in part and in negative terms, as also for the operation of the new law in the other part and in positive terms, the said provision may well be taken to be self-contained and indicative of the intention to exclude the application of section 6 of the General Clauses Act. The Supreme Court held in this case that section 6 could not be called in aid in the case before them. Reliance is also placed on a decision of the Allahabad High Court in Om Prakash v. Moti Lal. In this case a Full Bench of the Allahabad High Court has held that there is no authority for the proposition that an application in revision stands on exactly the same footing as an appeal and that both are vested rights which can be taken away only by express enactment or necessary intendment. Consequently, section 25 of the Provincial Small Causes Court Act, as it was before its substitution by the U.P: Act XVII of 1957, whereby the jurisdiction conferred by the High Court was transferred to the district court, did not confer any right or privilege on any person and in this respect neither clause (c) nor clause (e) of section 6 of the U.P General Clauses Act was attracted. It was however held in this case that as the High Court in exercise of its power of revision under section 25 of the Provincial Small Causes Court Act entertained the application for revision which was moved prior to 4th June, 1957, and directed the records to be called for, the order passed by the High Court on such application was an “act duly done” within the meaning of clause (b) of section 6 of the General Clauses Act and, therefore, the High Court still retained jurisdiction to dispose of that application in revision and was not bound to return the records to the district courts under the provisions of the new enactment (U.P Act XVII of 1957) which came into force on 4th June, 1957.

23. In an unreported decision of a Division Bench of this court in the case of Commissioner Of Income-Tax, Calcutta v. Bidhu Bhusan Sarcar (Deceased)., being an application for certificate to the Supreme Court in Income-tax Reference No. 22 of 1960 (judgment dated 7th February, 1963) objection was raised as to the maintainability of the application for certificate to the Supreme Court under the provisions of section 66A(2) of the Indian Income-tax Act, 1922, on the ground that as the assessment in respect of which the reference was made under section 66 of the Act of 1922 was complete and the proceeding on reference came to an end on the 10th January, 1962 and section 66A of the Act of 1922, which contained provisions for appeal was repealed by section 297(1) of the Income-tax Act, 1961, the petitioner had no right to appeal to the Supreme Court and so the application for certificate was not maintainable. It was also submitted that section 6 of the General Clauses Act did not apply to that case inasmuch as a different intention appears from the terms of the provisions of sub-section (2) of section 297 of the new Act. Reference was made particularly to clause (c) of sub-section (2) of section 297 and it was argued that what was saved by that clause from the effect of the repeal was pending proceedings by way of appeal, reference and revision at the time of the commencement of the new Act and the different clauses in sub-section (2) of section 297 indicated the intention of the legislature to save only the specific matters which are dealt with in such clauses from the effect of the repeal and no other matter and, con sequently, the operation of section 6 of the General Clauses Act is excluded by reason of the different intention as appearing in the various clauses of sub-section (2) of section 297 of the new Act. The Division Bench consisting of Debabrata Mookerjee J. and myself accepted this contention put forward on behalf of the respondent and it was observed as follows:

“The effect of the repeal of an enactment is as if it had never existed except as to matters and transactions past and closed, in the absence of any saving clause which manifests or implies a different intention. If particular matters are kept alive by the saving clause, the repealed enactment is treated for all purposes as alive in respect of such matters. The saving clauses contained in sub-section (2) of section 297 in my view do indicate a different intention as contemplated by section 6 of the General Clauses Act and ousts the operation of the general provisions contained in section 6, with the result that section 66A(2) which was completely obliterated by reason of the provision for repeal contained in sub-section (1) of section 297 of the new Act cannot be availed of by the petitioner for the purpose of initiating the proceeding for a certificate for appeal to the Supreme Court as contemplated in section 66A(2) of the Act. But it is to be noted that to meet such contingencies as the present one, the Central Government has promulgated an order on the 8th August, 1962, which is known as the Income-tax (Removal of Difficulties) Order, 1962……..”

24. After referring to clause 4 of the said order, it was further observed as follows:

“Sub-clause (1) of clause 4 makes it clear that any proceeding by way of appeal, reference or revision in respect of any order made under the provisions of the repealed Income-tax Act, 1922, has to be instituted and disposed of as if the repealing Act, that is, the Income-tax Act of 1961, had not been passed. In other words, the order which was made by the Division. Bench on reference under section 66 of the Indian Income-tax Act, 1922, will be governed, in matters of appeal from that decision or order to the Supreme Court, by the provisions for appeal to the Supreme Court, as contained in the repealed Act of 1922, that is, under the provisions of section 66A(2) of the Indian Income-tax Act of 1922.”

25. In another unreported decision of a Division Bench of this court in an application for certificate to the Supreme Court in Income-tax Reference No. 87 of 1960 (Commissioner of Income-tax v. Allahabad Bunk Ltd.), it was held that, as a reference under section 66 of the Indian Income-tax Act, 1922, was pending at the date of the commencement of the New Act of 1961, section 297(2)(c) preserved the right of appeal to the Supreme Court in respect of the decision or order made on such reference and so the petitioner had a right of appeal under the provisions of that clause. It was further held that even assuming that section 297(2)(c) was not applicable to the case, such right of appeal had been kept alive by the operation of section 6 of the General Clauses Act inasmuch as no different intention appeared from the provisions of sub-section (2) of section 297 of the Act of 1961. It was further held in this case that in any event the right of appeal was also preserved by clause 4 of the Income-tax (Removal of Difficulties) Order, 1962, and so section 66A(2) of the Indian Income-tax Act, 1922, was available to the petitioner. On the question of the validity of clause 4, which was agitated before the Division Bench, it was held that the Income-tax (Removal of Difficulties) Order, by enacting clause 4, had not made any provision which is inconsistent with the provisions of the 1961 Act:

As it is not necessary for us to express any definite opinion on the point of applicability of section 6 of the General Clauses Act, we refrain from doing so in the present case.

26. We hold that section 297(2)(a) is comprehensive enough to preserve the power of the Commissioner to initiate proceedings under section 33B of the Indian Income-tax Act, 1922, notwithstanding the repeal of the said Act by sub-section (1) of section 297 of the new Act and the action taken by the respondent-Commissioner against the appellant was properly taken and such action cannot be challenged as being without jurisdiction.

27. In the result, this appeal must fail and it is accordingly dismissed with costs.

B.C Mitra, J.:— I agree.