1. M. R. Dhawan, the petitioner, carried on business as a dealer and broker in shares under the name, M. R. Dhawan & Co., and was a registered member of the Delhi Stock Exchange. He maintained account books on mercantile basis and was assessed to income-tax under the I.T. Act 1961 (for short ' the Act ') as an individual.
2. For the assessment year 1961-62, the petitioner filed a return declaring his income of Rs.1,19,918. A revised return was filed on July 29, 1964, declaring an income of Rs. 1,26,835. A scrutiny of the account books by the ITO concerned revealed three credit balance entries of Rs. 26,21,590, Rs. 50,000 and Rs. 1,50,000 in the current account, loan account No. I and loan account No. II, respectively, of Babar Shamsher Jung Bahadur Rana of Nepal with whom the petitioner had dealings in shares and debentures. It was found that the said Rana had died at Bangalore on May 12, 1960, and most of the credit entries in his account were made after his death. The petitioner was asked to intimate as to how much amount he was holding for and on account of late Shri Rana till the date of his death, the details of any securities or shares belonging to the Rana lying with petitioner and if any amount had been withdrawn by the successors of the late Rana from the said accounts. The petitioner, vide his letter dated June 30, 1964, informed that an aggregate amount of Rs. 40,12,886.37 was due to the Rana on the date of his death and that none of his successors had ever approached the petitioner for withdrawal of the said amount. The petitioner was asked to furnish the details of the various credits given and also to get a confirmation of the credit balance from the son of the said Rana. The petitioner filed copies of late Rana's account showing credit balances of Rs. 26,14,672.75, Rs. 28,52,718.42, Rs. 34,75,886.37 and Rs. 38,12,886.37 in the years ending December 31, 1960, December 31, 1961, December 31, 1962 and December 31, 1963, respectively. He also informed the ITO that the question of getting any confirmation from the successors of the Rana did not arise because nobody had so far obtained any succession certificate and that the shares which were purchased by the petitioner were standing in the joint names of late Rana and his son, General Mrigendra, and the petitioner was holding a power of attorney for both of them. The ITO did not feel satisfied with this Explanationn. The petitioner, it appears from the assessment order, thereafter took the stand that the shares purchased by him did not belong to the Rana but belonged to certain beneficiaries on whose behalf the Rana had invested funds in India. The ITO was not satisfied with this Explanationn as well. Ultimately he found that the petitioner had given credits in the account of late Rana for Rs. 9,84,061.95, Rs. 10,80,893.25, Rs. 2,23,467.75, Rs. 14,81,434.25 in the accounting years 1961-62, 1960-61, 1959-60 and 1958-59, respectively. For assessment year 1961-62, besides the sum of Rs. 9,84,061.95 a sum of Rs. 2,00,000, being credit balance in loan accounts I and II, was added and thus he added a sum of Rs. 11,84,062 as the petitioner's income from undisclosed sources and another sum of Rs. 1,67,145 under the head 'estimated dividend income on shares purchased from the Rana' because of the petitioner's failure to prove the credit balance. It was also observed in the assessment order (annexure 'B') that action under s. 147 of the Act was being initiated to tax the other three amounts for the assessment years 1958-59, 1959-60 and 1960-61. It appears that fresh assessments were made regarding the assessment years 1958-59, 1959-60 and 1960-61. The petitioner filed appeals against these orders and the AAC directed the ITO to allow those losses which had been disallowed.
3. The petitioner filed an appeal against the assessment order for assessment year 1961-62. In the meantime, the Department, it appears, initiated recovery proceedings and attached his property. Petitioner, thereforee, moved an application before the Commissioner for staying the demand and recovery proceedings relating to the assessment year 1961-62 and for lifting the attachment of his bank accounts and two shares of Delhi Stock Exchange, etc., so as to enable him to carry on his normal business.
4. Apparently during those proceedings the petitioner made an application, dated August 24, 1966 (annexure D) offering a settlement. It was stated that a sum of Rs. 26,14,672.75 was standing to the credit of late Rana as on December 31, 1960, and another sum of Rs. 2,36,920.67 was credited during the accounting year ending December 31, 1961. The said amount could be recovered by the Rana within a period of three years but the period was extended on account of a payment on Rana's account on account of call money on 1,000 shares of Indian Trade & General Insurance Co. Ltd. and, thereforee, the time for recovery expired in the assessment year 1965-66. Another sum of Rs. 6,23,167.95 was credited to the account of the Rana during the account year ending December 31, 1962. This included a sum of Rs. 1,96,000 towards the cost of shares but the entry would have to be reversed because the shares had not been delivered. Thus the amount of Rs. 4,27,167.95 became irrecoverable in the assessment year 1966-67. The third item of Rs. 3,37,000 was credited in the account of late Rana during the accounting year ending December 31, 1963. A sum of Rs. 79,500 would have to be deducted because the shares had not been delivered and the remaining amount, i.e., Rs. 2,57,500, became irrecoverable during the assessment year 1967-68. The heirs of the Rana had not so far come forward to claim this amount for various reasons. These three amounts could be offered under s. 41 of the Act, because the credit amounts had been claimed and allowed as a trading liability to the petitioner in the earlier years and the liability in respect thereof had ceased if proper entries were made in the account books indicating the cessation of liability with a corresponding credit to the profit and loss account. The petitioner made an offer for settlement on the basis of treating the credits as income under s. 41 on account of cessation of liability. Earlier also, he had made a similar offer but it was subject to the condition that in the case the successors of the Rana succeeded in getting a decree for this amount then the Department would give the necessary adjustment. But this time he was not attaching any such condition. The offer was, however, subject to the condition that the scheme of payment as suggested by the applicant was accepted and the assessment for the assessment years 1965-66 and 1966-67 was completed after allowing losses of the intervening periods and of these years themselves. It was also averred that the stands taken by the Department in adding these items as unaccounted income was based on a pure guess and the petitioner had been ruined because of the act of the authorities.
5. The commissioner, vide his letter dated February 9/13, 1967, accepted the offer for taxation of Rs. 28,51,593, Rs. 4,27,168 and Rs. 2,57,500 under s. 41 of the Act, during the assessment years 1965-66, 1966-67 and 1967-68, respectively. He did not allow the deduction of Rs. 1,96,000 and Rs. 79,500 out of Rs. 6,23,167.95 and Rs. 3,37,000 as claimed by the petitioner in annexures A and B to his application. He also did not accept the scheme suggested for making the payment of the tax amount but made some counter suggestions. Regarding speculation losses, the petitioner was informed that the Department had gone in appeal before the Appellate Tribunal and the matter would be regulated by the final order of the authorities. The petitioner was informed that on his furnishing revised returns for the years 1965-66 and 1966-67 and accepting the assessment as final in so far as the amounts surrendered under s. 41 were concerned, the assessments already made for 1961-62 would be revised by him by deleting the additions of Rs. 11,84,062 and Rs. 1,67,145 made by the Income-tax officer.
6. The settlement was acted upon inasmuch as the petitioner admittedly filed the revised income-tax returns for the years 1965-66, 1966-67 and 1967-68 and added the amounts, as per settlement, to his income for the three years and was assessed accordingly. For the assessment year 1961-62 he was allowed deletion of Rs. 11,84,062 and Rs. 1,67,145 as agreed by the ITO before the AAC. The petitioner filed an appeal against the order of assessment for the assessment year 1965-66. The appeal was partly allowed regarding other items and the income was reduced by Rs. 3,69,325 by the AAC, vide his order dated August 31, 1968. The petitioner thereafter filed an appeal (annexure K) to the Income-tax Appellate Tribunal which since has admittedly been dismissed.
7. On February 2, 1972, the petitioner filed the present petition under articles 226 and 227 of the Constitution of India seeking a writ of certiorari or in the nature of certiorari for quashing the order of the Commissioner accepting the offer of settlement, the assessment orders for the assessment years 1965-66, 1966-67 and 1967-68 based on the impugned settlement in respect of s. 41(1) of the Act, and consequent demands of tax, penalties and interest and for declaring the recovery proceedings initiated by the Tax Recovery Officer-III, Delhi, as ultra vires, void and without jurisdiction and issuing the necessary directions to him and to his subordinates not to enforce the impugned demands for payment of interest, penalty, etc., contained in the notice of demand dated September 20, 1971. It was averred that the ITO, Central Circle IV, attached the petitioner's bank accounts and immovable property in connection with the demand for the assessment year 1961-62. The Tax Recovery Officer also took into possession the petitioner's qualifying shares of the Delhi Stock Exchange. The result was that the petitioner was prevented from transacting any business at the Delhi Stock Exchange, of which he had been the President for seven years consecutively and his credit in the business was shaken. The action of the Department ruined his life and deprived him of his means of livelihood. In these compelling circumstances, the petitioner was forced into a settlement in respect of s. 41 of the Act under duress and coercion. He offered the abovementioned sums by way of settlement in respect of s. 41 of the Act believing that the said amounts could be offered under s. 41 of the Act because the amounts had been claimed and disallowed as trading liabilities to him in the earlier years and the liability in respect thereof had ceased if proper entries were made in the account books, indicating the cessation of liability with the corresponding credit to the profit and loss account. The Commissioner while accepting his offer did not agree to his offer regarding the mode of payment and further added two sums of Rs. 1,96,000 and Rs. 79,500 for surrendering under s. 41 of the Act and left the question of allowing losses to the decision of the Appellate Tribunal and thus had not carried out the settlement as offered by the petitioner. Under the settlement, the order of attachment was to continue subject to certain undertakings but the authorities were putting his property to sale. The assessments were made subject to final orders of the appellate authorities but the petitioner was being harassed and sale of his property threatened. It was further averred that as at no stage the three amounts were either allowed as expenditure, loss or a trading liability while computing the income of the petitioner, there was no remission or cessation of this liability and, thereforee, s. 41(1) of the Act had no application to the facts of the present case and the impugned settlement and the assessment orders made on the basis of the said settlement were vitiated by law and were ultra vires, void and without jurisdiction.
8. The ITO, respondent No. 2, in his reply-affidavit controverter the various pleas. It was averred that there was no coercion or harassment of the petitioner. The petitioner himself made an offer for agreed assessment under s. 41 of the Act. The petitioner himself filed returns for the assessment years 1965-66, 1966-67 and 1967-68 after including the amounts agreed to be assessed as income of those years and the assessment was made accordingly and the petitioner could now complain or question the assessments. The allegations that the orders were void or without jurisdiction were denied. It was averred that the assessments were totally legal and in accordance with the provisions of the Act.
9. Admittedly, the appeals filed by the petitioner against the assessment orders for the assessment years 1966-67 and 1967-68 have since been allowed by the Appellate Tribunal and the cases remanded for fresh assessment. The petition, thereforee, survives only in respect of assessment order for the assessment year 1965-66.
10. It is admitted that the appeal filed by the petitioner against the assessment order for the year 1965-66 had been dismissed by the Appellate Tribunals on March 30, 1972. Under s. 256 of the Act, the petitioner had a right to move an application within the prescribed time requiring the Tribunal to refer to the High Court any question of law arising out of the order of the Tribunal. The Appellate Tribunal was required to draw up a statement of the case and refer it to the High Court. This was, however, subject to the provisions contained in the said section. Sub-s. (2) of s. 256 further provides that in case the Appellate Tribunal refuses to refer a case on the ground that no question of law arises, the assessed has a right to apply to the High Court, and the High Court may, if it is not satisfied with the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer it, land on receipt of any such requisition, the Appellate tribunal shall state the case and refer it accordingly. This remedy has admittedly not been availed of by the petitioner.
'A writ of certiorari is discretionary; it is not issued merely because it is lawful to do so. Where the party feeling aggrieved by an order of an authority under the Income-tax Act has an adequate alternative remedy which he may resort to against the improper action of the authority and he does not avail himself of that remedy, the High Court will require a strong case to be made out for entertaining a petition for a writ. Where the aggrieved party has an alternative remedy, the High Court would be slow to entertain a petition challenging an order of a taxing authority which is, ex facie, with jurisdiction. A petition for a writ of certiorari may lie to the High Court, where the order is on the face of it erroneous or raises the question of jurisdiction or of infringement of fundamental rights of the petitioner.' (See Champalal Binani v. CIT  76 ITR 629. In the same judgment it was further observed that 'the Income-tax Act provides a complete and self-contained machinery for obtaining relief against improper action taken by the departmental authorities, and normally the party feeling himself aggrieved by such action cannot be permitted to refuse to have recourse to that machinery and to approach the High Court directly against the action.'
11. In Isha Beevi v. TRO : 101ITR449(SC) , the Supreme Court held (p. 453) : 'The existence of an alternative remedy is not generally a bar to the issuance of such a writ or order. But, in order to substantiate a right to obtain a writ of prohibition from a High Court or from this court, an applicant has to demonstrate total absence of jurisdiction to proceed on the part of the officer or authority complained against. It is not enough if a wrong section or provision of law is cited in a notice or order if the power to proceed is actually there under another provision.'
12. It has, thereforee, to be seen whether the settlement and the assessment order for the assessment year 1965-66 involved a question of patent lack of jurisdiction. If the authorities under the Act had no jurisdiction to add this income then, in my view, this court would be justified in issuing a writ in exercise of its extraordinary jurisdiction under article 226 of the Constitution.
13. In the return filed by the petitioner for the year 1965-66 he showed his income as Rs. 1,13,675. After the impugned settlement he filed a revised return adding Rs. 28,51,593 as agreed under the settlement. This additional income was offered for assessment as income chargeable to tax under s. 41(1) of the Act, which reads as under :
'41. (1) Where an allowance or deduction has been made in the assessment for any year in respect of loss, expenditure or trading liability incurred by the assessed, and subsequently during any previous year the assessed had obtained, whether in cash or in any other manner whatsoever, any amount in respect of such loss or expenditure or some benefit in any amount in respect of such trading liability by way of remission or cessation thereof, the amount obtained by him or the value of benefit accruing to him, shall be deemed to be profit and gains of business or profession and accordingly chargeable to income-tax as the income of that previous year, whether the business or profession in respect of which the allowance or deduction has been made is in existence in that year or not.'
14. An examination of the above provisions reveals that an amount would be chargeable to income-tax under this section on the satisfaction of two requirements, namely, (i) that an allowance or a deduction had been made for that amount in respect of loss, expenditure or trading liability incurred by the assessed, in the previous assessments, and (ii) that subsequently the assessed had obtained any amount in respect of such loss or expenditure or some benefit in respect of such trading liability by way of remission or cessation thereof.
15. The contention raised on behalf of the petitioner is that neither of these twin requirements existed in this case. No allowance or deduction of the impugned amount was ever allowed to the petitioner in the previous assessments in respect of trading liability incurred by him. There was no remission or cessation of trading liability inasmuch as only the remedy of the heirs of late Rana to recover this amount had become barred by the law of limitation but the liability still existed. the provisions contained in s. 41(1) of the Act, thereforee, were not attracted. The authorities were not competent and had no jurisdiction to assess income-tax on this amount. The tax could not be assessed under the Act. No jurisdiction could be conferred on the authorities by the petitioner.
16. Both these question, in my view, are pure question of fact. The petitioner admittedly did not resile from the settlement before the ITO or the AAC or the Appellate Tribunal. He never challenged the correctness of the admissions made by him about the existence of these facts in his application for settlement (annexure D). He never withdrew the admissions before the authorities under the Act. In these circumstances, he cannot be allowed to resile from his admissions or raise these disputed questions of fact for the first time in this petition under art. 226 of the Constitution. The disputed questions of fact cannot be investigated by this court in exercise of its extraordinary jurisdiction under art. 226.
17. The Supreme Court in Shivram Poddar v. ITO : 51ITR823(SC) , observed as under (p. 829) :
'It is however, necessary once more to observe, as we did in C. A. Abraham's case : 41ITR425(SC) , that the Income-tax Act provides a complete machinery for assessment of tax, and for relief in respect of improper of erroneous orders made by the revenue authorities. It is for the revenue 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 recognised by the Constitution in matters relating to assessment, levy and collection of income-tax may be permitted only when questions of infringement of fundamental rights arise, or where on undisputed facts 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 had often to ask the court to make assumptions of facts which remain to be investigated by the revenue authorities.'
18. In para. 13 of the writ petition it was alleged that having been advised that the settlement offered by him was not legally binding, the petitioner filed revised returns and challenged the assessment orders by a separate appeal to the AAC filed on January 19, 1972. That challenge, in my opinion could be of no consequence because the appeal having already been dismissed by the AAC on August 31, 1968, no second appeal was competent under the Act.
19. What does the settlement, examined in the background of the then existing facts, reveal As noticed earlier, scrutiny of the accounts at the time of assessment for the assessment year 1961-62 revealed that the petitioner's ledger contained credit balances of about Rs. 28 lakhs in the current account, loan account No. I and loan account No. II Shamsher Jung Bahadur Rana. On an enquiry, the ITO was informed by the petitioner that a sum of about Rs. 40 lakhs was due to the said Rana on the date of his death. It is admitted in para. 2 of the writ petition that the petitioner had dealings with the Rana on the basis of principal to principal. According to the petitioner's own case, this credit balance represented the price of shares purchased by him from the Rana on credit. The liability created for purchasing the stock-in-trade, i.e., the shares, on credit, is certainly a trading liability. This amount was, admittedly, claimed as a trading liability by the petitioner before the tax authorities. It is correct that the ITO did not allow deduction of this amount as trading liability because he doubted the genuineness of these transactions and vide his order dated March 30, 1965, added a sum of Rs. 11,84,062 as undisclosed income, besides another sum of Rs. 1,67,145 under the head 'Estimated dividend income of shares purchased from the Rana'. Regarding the remaining amount which was found to have been credited in the previous years, the ITO initiated action under s. 147 of the Act for reassessment of income for those years. The petitioner filed an appeal against the said order. The Department in the meantime had initiate recovery proceedings. The petitioner, thereforee, filed an application for stay. During those proceedings he made an offer for settlement in his application dated August 24, 1966 (annexure D). According to the offer made by the petitioner, the credit balances in the account of the Rana were to be allowed as trading liability as claimed by him. The liability for Rs. 28,51,593.42 was to be treated as having ceased in the assessment year 1965-66 and the remaining liabilities in the assessment years 1966-67 and 1967-68 and these amounts were to be treated as income under s. 41 on that account in those years. This offer was accepted by the Commissioner. Though some other conditions were not accepted, the fact remains that after the acceptance, the petitioner acted upon the same and filed revised returns. It is clear from an examination of the application for settlement that the petitioner admitted that the impugned amount represented the trading liability and claimed deduction of the same which, though had not been allowed earlier, was allowed under the settlement. It is also clear from the fact that in the appeal against the assessment order for the assessment year 1961-62 decided on July 22, 1968, the amounts of Rs. 11,84,062 and Rs. 1,67,145 were deleted on the concession made by the ITO in view of some future developments, which obviously meant the settlement. In these circumstances, it cannot be said that the allowance or deduction for trading liability had not been allowed to the petition in the previous assessments. There is no evidence on the record to show that the allowance or deduction for the trading liability for the assessment years prior to 1961-62 were not allowed.
20. Cessation of trading liability means coming to an end of the obligation to pay the amount of the trading liability to the creditor. Where the remedy of the creditor becomes barred by the law of limitation, there is no. cessation of liability inasmuch as only the remedy to enforce the right in a law court goes. The liability still subsists. A Division Bench of the Kerala High Court in CIT v. V. T. Kuttappu & Sons : 96ITR327(Ker) , had taken the view that if a debt had become barred, what was barred was only the remedy and not the right. In that case, it was specifically noticed that in terms there was no admission by the assessed that there was no liability. The petitioner, however, in the application for settlement admitted in terms that this liability had ceased to exist. In para. 3 it has been clearly stated that the heirs of late Rana had not come forward to claim this amount for various reasons. Bar of limitation was, thereforee, not the only reason. It is significant to note that in the application for settlement the petitioner had stated that, earlier also, he had made an offer to surrender this income but subject to the condition that in case the Rana's heirs succeeded in getting a decree for this amount, the necessary adjustment would be allowed by the Department but now he was not attaching this condition. (See para. 8 of the application for settlement). The petitioner thus admitted in clear terms that this liability had finally ceased to exist. He cannot be now allowed to resile from this admission. It cannot be said that the said admissions were erroneous. No good ground even has been made to withdrew these admissions of facts. The second requirement, thereforee, stood satisfied.
21. The petitioner, in my view, has failed to prove that the impugned settlement or impugned assessment order for the assessment year 1965-66 suffered from a patent lack of jurisdiction. The petition has no merit and is dismissed with costs.