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R. B. Seth Gujar Mal Modi and Others Vs. Commissioner of Income-tax Punjab, and Another. ([1967] 64 I. T. R. (Sh. N.) 6.). - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 433 of 1964
Reported in[1967]64ITR249(P& H)
AppellantR. B. Seth Gujar Mal Modi and Others
RespondentCommissioner of Income-tax Punjab, and Another. ([1967] 64 I. T. R. (Sh. N.) 6.).
Cases ReferredS. C. Prashar v. Vasantsen Dwarkadas. This
Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply.....orderjindra lal j. - the points involved in this petition are of considerable importance and not free from difficulty. the amount involved is substantial and the party aggrieved by any decision given by me is likely to go up in appeal in letters patent. some of the points involved are such as could have fairly come up to this court on a reference under section 66 of the income-tax act and dealt with by a division bench.in view of this, i am of the opinion that this petition should be heard by a larger bench. let the papers of this case be placed before my lord the chief justice for constituting a larger bench to hear this petition. parties are keen to have the matter decided expeditiously.mr. awasthy, learned counsel for the respondents, contends that the petitioners in the garb of.....
Judgment:
ORDER

JINDRA LAL J. - The points involved in this petition are of considerable importance and not free from difficulty. The amount involved is substantial and the party aggrieved by any decision given by me is likely to go up in appeal in Letters Patent. Some of the points involved are such as could have fairly come up to this court on a reference under section 66 of the Income-tax Act and dealt with by a Division Bench.

In view of this, I am of the opinion that this petition should be heard by a larger Bench. Let the papers of this case be placed before my Lord the Chief Justice for constituting a larger Bench to hear this petition. Parties are keen to have the matter decided expeditiously.

Mr. Awasthy, learned counsel for the respondents, contends that the petitioners in the garb of elaborating their arguments are really introducing and urging new points and making out a new case. Since the whole matter will be disposed of by a larger Bench, this question can also be urged there.

Order of Division Bench

I. D. DUA J. - This petition under articles 226 and 227 of the Constitution at the instance of four brothers was admitted by a Bench of this court on March 12, 1964, with a direction that it should be set down for hearing before the vacation. It was heard by Jindra Lal J. who on September 11, 1964, referred the case to a larger Bench on the ground that the points involved were of considerable importance and not free from difficulty, the amount involved being also substantial. It may be pointed out that in September 7, 1964, Jindra Lal J., after hearing arguments for nearly two hours, was informed by the learned counsel for the revenue that some of the points urged on behalf of the petitioners had not been taken in the petition. This was controverted on behalf of the petitioners and it was submitted by their counsel that all the points were actually taken in the petition and, during the arguments, those points were merely being elaborated. The learned single judge thereupon directed the petitioners to file an affidavit elaborating the law points to be urged on their behalf with an advance copy being given to the respondents who were at liberty to file an affidavit in reply, if so advised. It was for this reason that the case was adjourned to September 11, 1964. When the case was referred to a larger Bench, the learned counsel for the revenue again submitted that in the garb of elaborating their arguments, the petitioners were really trying to introduce and urge new points and were thus attempting to make out a new case. The learned single judge, in these circumstances, observed that this question would also be open to arguments before the larger Bench. I have considered it necessary to make this observation because at the bar a suggestion was thrown on behalf of the petitioners, who are now represented by a different counsel, that the learned single judge had allowed all these points to be raised. I will advert to this aspect at the proper stage.

The facts giving rise to the controversy before us, as stated in the writ petition, are that R. B. Seth Multani Mal Modi, father of the four petitioners, died on October 22, 1957. He was shareholder of Modi Spinning and Weaving Mills Co. Ltd., (hereinafter called the company) holding therein two blocks of shares. The board of directors of the company declared an interim dividend on March 5, 1956, which was confirmed by the company in its general meeting on January 17, 1957. The declaration confirmed being in two different financial years is the source of the controversy. The dividend warrants in respect thereof were dispatched by the company on June 21, 1956. The deceased did not show the said dividend amounting to Rs. 60,265 as his income in the return filed by him for the assessment year 1956-57 and instead included it in his return for the assessment of the following year 1957-58. The Income-tax Officer while making the assessment for the year 1956-57, held February 10, 1958, that the said dividend did not relate to the assessment year 1957-58, but related instead to, and was taxable in, the assessment year 1956-57. Thus holding, he included this amount of Rs. 60,265 in the income of the deceased for the year 1956-57. An appeal was taken by the deceased against the said order to the Appellate Assistant Commissioner of Income-tax who by his order dated July 21, 1959, held that the said dividend income was not taxable in the assessment year 1956-57 and accordingly directed the Income-tax Officer to include this amount in the income for the assessment year 1957-58. The department took an appeal from this order to the Income-tax Appellate Tribunal but the same was unsuccessful, having been dismissed on August 17, 1961, following the judgment of this court in J. Dalmia v. Commissioner of Income-tax (Reference No. 16 of 1959). The assessment of the income of the deceased for the year 1957-58 had been made by the Income-tax Officer of February 10, 1958, when he held that this amount had been assessed in the year 1956-57. This amount was accordingly not assessed in the hands of the deceased for the assessment year 1957-58. Faced with this situation, the Income-tax Officer sought to tax this amount under section 34 (1) (b) of the Indian Income-tax Act, 1922, with the result that a notice was issued to Shri Harmukh Rai Modi, petitioner No. 2, under that section for reassessing the said dividend income of the deceased. The notice dated November 7, 1959, was issued to petitioner No. 2 and it is averred in the writ petition that no notice was issued to the other petitioners. In these proceedings the date fixed before the Income-tax Officer was October 19, 1960, but that day, being a public holiday, another notice was issued for October 29, 1960. In reply to that notice, petitioner No. 2 sent a telegram on October 28, 1960, requesting for an adjournment on the plea that he was not aware of any notice under section 34 (1) (b) having been issued as alleged. The Income-tax Officer by his order dated October 29, 1960, declined the adjournment and completed the assessment under section 23 (4) of the 1922 Act. It may be pointed out that in the order dated October 29, 1960, it has been expressly stated that the notice dated November 7, 1959, had been served by registered post on November 14, 1959. As the assessment was, in the opinion of the Income-tax Officer, likely to be barred by time by the next fortnight, the adjournment sought was refused and the assessment completed. On receipt of this order of assessment, petitioner No. 2, so proceeds the writ petition, made an application under section 23 (4) of the Act. Petitioner No. 2, it is expressly pleaded in the writ petition, also filed two appeals before the Appellate Assistant Commissioner of Income-tax, one against the order of the Income-tax Officer made under section 27 of the 1922 Act and the other on the quantum of the amount assessed. The Appellate Assistant Commissioner - vide his two separate orders dated June 15, 1963 - set aside the assessment and directed fresh assessment to be made in accordance with law after properly serving the notices on the legal heirs. It is averred in the writ petition that the Appellate Assistant Commissioner had held that the purported notice under section 34 (1) (b) had not been properly served and had not been properly addressed and not received by the assessee or his duly authorised agent. It is added in the petition that the Appellate Assistant Commissioner also held that the notice under section 34 should have been served on all the four legal heirs, namely, the present petitioners. The department did not prefer any appeal against these orders to the Appellate Tribunal. Thereafter, the notices now sought to be impugned were issued on January 7, 1964, under section 148 of the Income-tax Act, 1961, with the object of assessing the aforesaid dividend income. Pt. Ghisa Ram, the representative of the four petitioners, is alleged to have met the Income-tax Officer, respondent No. 2, and explained to him that these notices are illegal and without jurisdiction, deserving to be cancelled or withdrawn. The Income-tax officer replied that, since the dividend income had escaped assessment, he was entitled to assess the same in the hands of the petitioners. These notices are stated in the writ petition to be on their face barred by time as, in the circumstances of this case, notices under section 148 of the Act of 1961 could be issued only within four years of the expiry of the relevant year, namely, March, 1958. The last day of the relevant assessment year is, according to the petitioners, March 31, 1958. It is further added that, in view of the fact that the deceased had himself returned this dividend income in his return for the assessment year 1957-58 and the Income-tax Officer not having taxed the same on the view that it should be properly taxed in the year 1956-57, it cannot be said that there was any omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment for that year. The matter could, in the circumstances, fall, if at all, under section 147(b), for which the limitation under section 149(b) would be four years from the end of the relevant assessment year. Next it is averred that the information contemplated by section 147(b) must be an information from an external source and not as a result of the finding of the appeal court for the same assessment year and thus section 147 of the Act could also not be attracted. In case the respondents are allowed to proceed further in pursuance of the impugned notices, the petitioners, it is emphasised, will be subjected to protracted proceedings and will suffer heavy loss. They have accordingly no other equally efficacious convenient alternative remedy. It is on these averments that the writ jurisdiction is invoked by the petitioners in their challenge against the impugned notices. I may here point out that, though R. N. Seth Multani Mal Modi had died on October 22, 1957, in the writ petition it has been asserted in paragraph 9 that the deceased had filed an appeal against the order dated February 10, 1958, before the Appellate Assistant Commissioner of Income-tax. Indeed, even on February 10, 1958, the date of assessment by the Income-tax Officer, R. B. Seth Multani Mal was not alive and the assessment presumably was made against the estate of the deceased.

In the return, a preliminary objection has been raised to the effect that the petitioners have their remedies under the Income-tax Act and, therefore, the present petition is misconceived, deserving to be dismissed as such. On the merits, it is pleaded that the Appellate Assistant Commissioner had directed the Income-tax Officer to include the amount in question in the income of the assessee for the year 1957-58. It was in pursuance of the direction of the Appellate Assistant Commissioner that proceeding under section 34 (1) (b) of the Income-tax Act were started and a notice under section 34 served on the assessee on November 14, 1959. Shri Harmukh Rai Modi, petitioner No. 2, according to the return, had in the earlier years received notices and had complied with them on behalf of himself and of other legal heirs of the late R. B. Multani Mal Modi. It was for this reason that the notice under section 34 (1) (b) was also served on him. None of the petitioners ever raised any objection and the Income-tax Officer, respondent No. 2, bona fide believed that Shri Harmukh Rai Modi was acting for all the legal representatives of the late Shri Multani Mal Modi. No return having been filed by the assessee in compliance with the notice, the assessment was completed under section 23 (4) on October 29, 1960, and indeed the assessee did not take up the position that he had not been served under section 34. The only communication received from the assessee was a telegram from Shri Ghisa Ram for the adjournment of the case. While accepting the assessees appeal and canceling the assessment order, the Appellate Assistant Commissioner directed fresh assessment for the year 1957-58, according to law, after properly serving notices on all the legal representatives of the late Shri Multani Mal Modi. In the return, it is also pleaded that there is no time-limit to the issue of notices on the facts and circumstances of this case. Reference in the return has also been made to section 150 of the Income-tax Act, 1961, according to which the normal period fixed under section 149 of the Act is not applicable to the case. In paragraph 21, it is again pleaded that the petitioners should take their remedies by resort to the machinery laid down by the Income-tax Act. On September 7, 1964, Ghisa Ram Sharma score an affidavit in which several points have been mentioned and it is stated in the end that the points mentioned therein were points of law and had already been taken in the writ petition but were being elaborated in the affidavit. In any case, so proceed the affidavit, the points being pure points of law relating, inter alia, to the jurisdiction of the Income-tax Officer and the validity of the notice may be permitted to be urged. This was controverted by an affidavit dated September 10, 1964, by Shri L. R. Dhingra, Income-tax Officer. It is stated therein that in the garb of elaborating what the deponent terms as 'pure points of law', the petitioners are seeking to introduce new matters in the writ petition which had never been taken before. It has also been stated in this affidavit that the return for the assessment year 1957-58 bears the signatures of Shri Ghisa Ram Sharma as attorney of the assessee. Original returns in respect of the assessment year 1956-57 and 1957-58 had, however, been signed in Urdu by the late R. B. Seth Multani Mal Modi himself. After the death of R. B. Multani Mal Modi on October 22, 1957, all proceedings in respect of the assessments years were duly served on him/or on his attorney, Shri Ghisa Ram Sharma, and were duly complied with by them. No objection was ever raised by the said Harmukh Rai Modi or by his attorney, Ghisa Ram Sharma, to the effect that there were other legal representatives of the deceased. It has also been sworn in this affidavit that Shri Ghisa Ram Sharma had also been the attorney of the late R. B. Multani Mal Modi during his lifetime. Reference in this affidavit has in addition been made to a letter dated January 10, 1958, by Shri Harmukh Rai Modi for the purpose of establishing that Shri Harmukh Rai Modi represented himself as the legal heir and representative of his father and in that capacity authorised Shri Ghisa Ram Sharma, his general attorney, to represent the income-tax cases of late R. B. Multani Mal Modi stating that all statements and explanations made by Shri Ghisa Ram Sharma would be binding on him. Shri Mela Ram Mahendra, advocate, Patiala, on January 30, 1958, to represent the income-tax cases of the late R. B. Seth Multani Mal Modi. In regard to the dividend warrants now in dispute, Shri Harmukh Rai Modi is stated to have certified that these dividends relate to shares which were his own property at the time when the dividends were declared and also during the relevant period being in his own possession. This certificate is dated January 25, 1958, and Harmukh Rai Modi has signed for late R. B. Seth Multani Mal Modi. On February 1, 1958, an indemnity bond was executed by Harmukh Rai Modi as legal representative of late R. B. Seth Multani Mal Modi in respect of refund claimed on dividends. In addition, all the statements during the assessment proceedings were signed by Harmukh Rai Modi as legal heir and representative of deceased father. Even after the passing of the assessment order against the estate of the deceased, Multani Mal Modi, Harmukh Rai Modi continued to represent the entire estate in the matter of making payments and getting extension of time for deposit of money. In the assessment year 1958-59, Harmukh Rai Modi filed a return as legal representative of the late R. B. Multani Mal Modi on August 16, 1958. Reference has also been made to a letter dated August 21, 1961, in which Harmukh Rai Modi wrote to the Income-tax, Officer in his capacity for and on behalf of the late R. B. Seth Multani Mal Modi. For these reasons, notice under section 34 (1) (b), according to the rejoinder, was not bad on the ground of its being issued to Harmukh Rai Modi alone. Finally, it is pleaded that at the enforcement of the new Act, notices could properly be issued under section 148 of the Act of 1961. Non-issue of notices to the other legal representatives, on the facts and circumstances of this case, does not vitiate the proceedings or render them void ab initio as claimed by the petitioners. In the end, an objection is raised to the admissibility of Ghisa Rams affidavit dated September 7, 1964, and it is urged that the said affidavit be ruled out and the original writ petition be decided as it is farmed.

In my opinion, in so far as the affidavit of Shri Ghisa Ram introduces new points not covered by the original writ petition, it must, to that extent, be ruled out, no cogent ground having been made out for permitting any point outside the writ petition to be raised.

Shri Awasthy has in support of his preliminary objections submitted that the challenge to the notice, involving as they do consideration of important facts as well, should be raised before the remedies provided by the statute are adequate and should be pursued by the petitioners and direct approach to this court on the writ side in the very first instance should be discouraged. Strong reliance has been placed on behalf of the revenue on First Additional Income-tax Officer, Kozhikode v. Mrs. Suseela Sadanandan ([1965] 57 I. T. R. 168 (S. C.)) for the submission that Shri H. R. Modi, being in possession and management of the entire estate of the deceased, Shri Multani Mal Modi, he effectively represented the entire estate of the deceased. It is pointed out that after the death of Shri Multani Mal Modi on October 22, 1957, all assessment proceedings for both the years in question were attended to on behalf of the estate of the deceased by Shri H. R. Modi alone who professed to represent the entire estate and was in fact intermeddling with the same. Indeed, Shri Ghisa Ram Sharma, the attorney of the deceased in these proceedings, continued to represent Shri H. R. Modi also as his attorney in these proceedings. As an intermeddler also, Shri H. R. Modi represents the estate of the deceased and, in any event, to the extent of the estate of the deceased represented by Shri H. R. Modi, the notice given can by no means be assailed. The revenue, it is emphasised, has acted bona fide in considering that Shri H. R. Modi fully represents the estate of the deceased. This aspect depends on evidence and its adjudication, requiring as it does consideration of questions of fact and law, the matter should appropriately be raised before, and adjudicated upon, by the subordinate departmental authorities. Lalji Haridas v. R. H. Bhatt ([1965] 55 I. T. R. 415 (S. C.)) has been cited for the submission that the jurisdiction of the High Court under article 226 of the Constitution is not intended to supersede the jurisdiction and authority of the Income-tax Officers to deal with the merits of all the contentions that the assessee may raise before them, and so, it would be entirely inappropriate to permit an assessee to move the High Court under article 226 and contend that a notice issued against him is barred by time. That is a matter which the income-tax authorities must consider on the merits in the light of the relevant evidence. Support is also sought from Sales Tax Officer, Jodhpur v. Shiv Ratan G. Mohata ([1965] 1 S. T. C. 599 (S. C.)) for the submission that it is not the function of the High Court under article 226 of the Constitution in taxing matters to constitute itself into an original authority or an appellate authority to determine questions of taxability which depend upon a precise determination of facts. There must, according to this decision, be something going to the root of the jurisdiction of the Sales Tax Officer, something to show that it would be a case of palpable injustice to the assessee to force him to adopt the remedies provided by the Act before the High Court should decide to allow its writ jurisdiction to be invoked. Our attention has also been drawn to the decision of the Supreme Court in Shivram Poddar v. Income-tax Officer, Calcutta ([1964] 51 I. T. R. 823 (S. C.)), in which, at page 829, Shah J., speaking for the court, recorded a reminder in these words :

'It is, however, necessary once more to observe, as we did in C. A. Abrahams case ([1961] 41 I. T. R. 425; [1961] 2 S. C. R. 765) that the Income-tax Act provides a complete machinery for assessment of tax, and for relief in respect of improper or erroneous orders made by the revenue authorities. It is for there venue authorities to ascertain the facts applicable to a particular situation, and to grant appropriate relief in the matter of assessment of tax. Resort to the High Court in exercise of its extraordinary jurisdiction conferred or recognized by the Constitution in matters relating to the assessment, levy and collection of income-tax may be permitted only when questions of infringement of fundamental rights arise, or where on undisputed fats the taxing authorities are shown to have assumed jurisdiction which they do not possess. In attempting to bypass the provisions of the Income-tax Act by inviting the High Court to decide questions which are primarily within the jurisdiction of the revenue authorities, the party approaching the court has often to ask the court to make assumptions of facts which remain to be investigated by the revenue authorities.'

Reliance has been placed on a Bench decision of the Madras High Court in R. Chinnaswami Naidu & Sons v. First Income-tax Officer, Coimbatore, according to which the court should 'take into consideration the statutory scheme of remedies and decline to interfere unless the alternative remedies are inadequate and to compel a party to resort to them will amount to denial of speedy justice in the circumstances and would mean grave hardship and harassment and waste of time and money.' This rule was propounded having regard to three decisions of the Supreme Court in the cases of Lalji Haridas, Shiv Ratan, and of Madhya Pradesh Industries Ltd. v. Income-tax Officer. Lastly, reference has been made to a recent decision of this Bench in Rattan Chand v. Central Board of Direct Taxes, in which, on a fairly exhaustive review of case law, we declined to interfere on the writ side, leaving the assessee to seek remedies provided by the statute.

Shri Karkhanis has in reply very persuasively argued that the impugned notice being without jurisdiction, this court should, in its direction from the decision at this stage and quash it, seeking support for his submission from the decision in the case of Mrs. Suseela and from the Supreme Court decision in Calcutta Discount Co. Ltd. v. Income-tax Officer, Calcutta. Reference by the counsel has also been made to Hari Vishnu Kamath v. Syed Ahmad Ishaque, a case dealing with election matter, and State of U. P. v. Mohammad Nooh, in which a departmental enquiry against a head constable of police was the subject-matter of challenge. He has attempted to fortify himself by submitting that as, in the present proceedings, the jurisdiction of the taxing authority to issue the notice is being challenged, this court is the proper forum in which such a challenge can be canvassed. A recent unreported Single Bench decision of this court in Darshan Singh Chawla v. Income-tax Officer (C. W. 65-D of 1966, decided on 12-8-1966) has been strongly pressed into service in support of interference by this court. In that case, the period of notice under section 34 of the old Income-tax Act having expired, section 297 of the current Act was held incapable of reviving the proceedings so barred. The decision of the Madras High Court in the case of R. Chinnaswami, and of this court in the case of Ratan Chand, according to Shri Karkhanis, are distinguishable on facts, as in Madras case it was expressly observed that no question of jurisdiction arose and in Rattan Chands case, there were several other material factors (wanting in this case) which prevailed with this Bench in declining interference. The petitioners counsel has emphasised that he is challenging the vires of the second proviso to section 34 (3) of the Indian Income-tax Act (11 of 1922) and, it is settled, says he, that this challenge cannot be adjudicated upon by the authorities under the Income-tax Act. In this connection, he has referred us to a decision of the Supreme Court in Beharilal Shyamsundar v. Sales Tax Officer, following its earlier decision in K. S. Venkataraman and Co. (P.) Ltd. v. State of Madras. Reference in this connection has also been made to the decision of the Supreme Court in the case of Shiv Ratan.

In reply Shri Awasthy has very strongly argued that the question of the varies of the second proviso to section 34 (3) of the Income-tax Act of 1922 was not raised on the writ petition and should not be allowed to be raised in the grab of elaboration of the points raised in the writ petition by furnishing a fresh affidavit of Ghisa Ram dated September 7, 1964. By means only of this fresh affidavit, points out Shri Awasthy, the second proviso to section 34 (3) has been alleged to be ultra vires as regards the legal hers of the deceased on the basis of the reasons set out in the decision of the Supreme Court in S. C. Prashar v. Vasantsen Dwarkadas. This plea, according to Shri Awasthy, apart from being an afterthought, having been raised only on September 7, 1964, would be of no avail even to petitioners Nos. 1, 3, and 4, if petitioner No. 2 is held to represent the entire estate of the deceased, R. B. Multani Mal Modi. And again, this plea, so submits the counsel, does not invalidate the impugned notice issued under section 148 of the new Act.

After the arguments on the preliminary objection, the counsel for the parties have also addressed us on the merits of the controversy, but, in our opinion, the basic question which must, in the very first instance, require determination is whether Shri H. R. Modi, petitioner No. 2, effectively represented the estate of the late R. B. Multani Mal Modi, for, if that question is decided in favour of the revenue, then this writ petition presented by all the four persons of the deceased assessee would be difficult to sustain. It may be pointed out that even according to the petitioners counsel, the question of the vires of the second proviso to section 34 (3) does not avail petitioner No. 2, Shri H. R. Modi, and Shri Karkhanis has expressly confined this plea of ultra vires to be available only to petitioners Nos. 1, 3 and 4, they alone being, according to him, strangers. On this view, the notice as against petitioner No. 2 can only be challenged on the ground of bar of limitation, which plea, in view of the Supreme Court authorities discussed above, particularly the case of Lalji Haridas, can appropriately be determined by the departmental authorities. And then if he represents the estate effectively, in that event, the question of the liability of the estate of the late Shri Multani Mal Modi will have to be determined in accordance with the general law by the assessing authorities. In that case, the question of the vires of the second proviso to section 34 (3) of the Act of 1922 would scarcely be material. Besides, it is noteworthy that the notice which is being challenged in the present proceedings purports to be issued under section 148 of the Act 1961 on the allegation that the income of the late R. B. Seth Multani Modi had escaped assessment with in the meaning of section 147 of the new Act. These proceedings do not purport to be under section 34 of the Act of 1922. It may be recalled that R. B. Multani Mal Modi had died on October 22, 1957, and even assessments for the years 1956-57 and 1957-58 were made on February 10, 1958, after his death when his estate was represented by Shri H. R. Modi and his attorney. Shri Ghisa Ram, who, it is significant, had also been acting as the attorney of the late R. B. Multani Modi during his lifetime. Now, the question of Shri H. R. Modi representing the entire estate of his deceased father essentially depends on facts which require a valuation. It would accordingly be highly inappropriate for this court to embark in writ proceedings on an enquiry involving appraisal of evidence; such a course would clearly be contrary to the well-recognised rule that this court ordinarily does not allow an assessee to invoke its writ jurisdiction ignoring or by passing the departmental hierarchy, when his plea of law is not based on admitted or established facts on the record and when the assessing authorities have not had an opportunity of pronouncing their opinion on the relevant facts. The arguments addressed before us were largely concentrated on the question of the notice under section 34 of the old Act being barred by time and the notice under section 148 of the new Act being incompetent as also on the effect of the previous order of the taxing authorities. On this question, arguments both pro and con have been urged at the bar, but these are matters which this court is destined at this stage in the present proceedings to deal with and to pronounce upon. This is a question which is pre-eminently with in the jurisdiction of the taxing authorities under the Income-tax adjudicated upon. We are not convinced that there is either a jurisdiction infirmity exceptional circumstances which would justify exercise of this courts jurisdiction under article 226 of the Constitution at this stage. We are not at all satisfied that to leave the petitioners to urge their grievances before the departmental hierarchy in accordance with the Income-tax Act would amount to unreasonable denial of speedy justice or would mean gave and palpable hardship or unnecessary harassment or under waste of time and money. On the contrary, such a course would be in conformity with the statutory scheme, and the facts and circumstances of the case would be properly scrutinized and evaluated by the authorities whose statutory duty it is to do so. The petitioners can there after, of so advised, seek relief in accordance and collection of taxes are matters of common knowledge and evasion of legitimate tax correspondingly enhances the burden on the honest and law-abiding taxpayers or tells on the States financial capacity in discharging its obligations to the society as a whole. Parliament has, in its wisdom, accordingly provided a machinery for solving this problem in a manner properly balancing the interests of the assessees and the society at large. To allow this machinery to be bypassed, save in exceptional clear cut cases of patent jurisdictional infirmity or grave and manifest violation of law, when to leave the assessee to the statutory hierarchy would mean palpable injustice, is, in our opinion, improper exercise of the discretionary writ jurisdiction.

As we are disinclined to go into the merits of the controversy, we have considered it inexpedient to express any opinion thereon one way or the other, because any expression is likely to prejudice the unhampered judicial approach to the problem by the authorities. The petitioners are, therefore, left to pursue their remedy and urge their point of view before the departmental hierarchy.

For the foregoing reasons, this writ petition fails and is hereby dismissed but with no order as to costs.

P. C. PANDIT J. - I agree.

Petition dismissed.


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