1. The petitioner is the accountable person liable to account for the estate duty in respect of the estate of his deceased father, Parameswaran Pillai, cashew exporter, Quilon, who died on May 13, 1956. The first respondent is the Asst. CED, Ernakulam ; the second respondent, the Income-tax Appellate Tribunal, Cochin Bench, Cochin ; the third respondent, the Appellate Controller of Estate Duty, Southern Zone, Madras ; and the fourth respondent, the Central Board of Direct Taxes, New Delhi.
2. Aggrieved by the decision of the first respondent rejecting the valuation of the estate given by the accountable person in the statement of accounts filed by him, and computing the valuation at a larger sum on the basis of the enquiry conducted, the petitioner preferred an appeal before the Central Board of Revenue under Section 63 of the E.D. Act, 1953 (Act 34 of 1953). Though the appeal was allowed in part, the contention of the petitioner that the properties covered by the settlement deed dated December 29, 1954, executed by the petitioner's father should have been valued on the basis of the position obtaining on the date of the settlement deed did not find favour with the Board also. Out of the order passed by the Board, I.T.R. Nos. 19 of 1966 and 89 of 1967 [P. Gangadharan Pillai v. CED : 70ITR640(Ker) ] arose ; and these were disposed of by this court as per judgment dated December 6, 1967, a copy of which is marked as Ex. P-1 in the writ petition. In Ex. P-1 judgment this court had answered question No. 3 in I.T.R. No. 19 of 1966 and question No. 1 in I.T.R. No. 89 of 1967 in favour of the petitioner. Those questions are given below ;
Question No. 3 in I.T.R. No. 19 of 1966.
' Whether, on the facts and in the circumstances of the case, for the purpose of including in the estate the property covered by the settlement dated December 29, 1954, the profits of the business subsequent to the date of settlement which had been ploughed back into the business was properly taken into account by the Board ' Question No. 1 in I.T.R. No. 89 of 1967. ' Whether, on the facts and in the circumstances of the case, the Central Board was justified in including the profits of the business carried on exclusively by the donees with their own monies and the augmented value of the assets, the augmentation being due to the exercise of the skill and efforts of the donee, in the value of the assets said to pass on the death of Sri Parameswaran Pillai '
3. Exhibit P-1 judgment concludes with the following direction :
' A copy of this judgment under the seal of this court and the signature of the Registrar shall be sent to the Central Board of Direct Taxes, New Delhi, as required by Section 64(7) of the Act as it stood before its amendment by the Estate Duty (Amendment) Act, 1958. '
4. According to the petitioner, he had no communication from any of the respondents after this court passed Ex. P-1 judgment till he received a notice from the first respondent intimating him of the enquiry proposed to be held for passing appropriate orders giving effect to that judgment. The first respondent, after the enquiry in which the petitioner also participated, passed orders on May 15, 1971, assigning to the properties covered by the settlement, the value as was given for them in that document. A true copy of this order is Ex. P-2. The appeal filed by the petitioner before the third respondent was dismissed by the order dated April 5, 1972, a true copy of which is Ex. P-3. Though the petitioner carried the matter in second appeal before the second respondent, that ended in dismissal on the preliminary objection that no appeal would lie before the second respondent (for that matter before the third respondent also) against Ex. P-2 order. A true copy of this order dated February 11, 1974, is Ex. P-4. The petitioner, thereafter, by his petition dated February 24, 1974, requested the 4th respondent to dispose of his case conformably to Ex. P-1 judgment. The 4th respondent by its order dated October 10, 1975, a true copy of which is Ex, P-5, rejected the petition. The material portion of Ex. P-5 order reads as follows:
'The Board have already passed an order under Sub-section (7) of Section 64 of the Estate Duty Act, 1953 (as it stood prior to its amendment by Act 33 of 1958), In view of this, it appears that the Board cannot pass a fresh order under that provision once again.'
5. In this writ petition under Articles 226 and 227 of the Constitution of India the main prayer is for the issue of a writ of mandamus directing the 4th respondent to dispose of the petitioner's case conformably to Ex. P-1 judgment after quashing Ex. P-5 order by the issue of a writ of certiorari. The alternate prayer is to direct the 2nd respondent to dispose of the petitioner's case in accordance with law, after quashing Ex. P-4 order.
6. Before entering upon a discussion relating to the main prayer I would like to dispose of the alternate prayer. For this purpose, it may be necessary to notice the relevant legislative changes that came into existence in the E.D. Act during the pendency of the proceedings. The E.D. Act, 1953 (Act 34 of 1953), hereinafter referred to as the principal Act, was amended by the E.D. (Amend.) Act, 1958 (Act 33 of 1958) (hereinafter referred to as the 'Amendment Act'). For the sake of convenience we will call the Act as amended by the Amendment Act as the amended Act. Section 21 of the Amendment Act provided for the substitution of Sections 56 to 65 of the principal Act by new sections. Whereas Section 63 of the principal Act provided for an appeal to the Central Board of Revenue directly against the valuation under Section 61 made by the Controller, what the amended Act has provided for is an appeal before the Appellate Controller under Section 62 against the order passed by the Controller, and a further appeal before the Appellate Tribunal,under Section 63 against an order passed by the appellate authority under Section 62. One other provision in the Amendment Act which requires to be noticed is Section 29, which provides as follows :
' 29. Savings.--Nothing contained in Section 21 shall affect-
(a) any appeal pending before the Board in respect of any order made by the Controller before the commencement of this Act ; or
(b) any right or remedy by way of appeal which has accrued to any person in respect of any order made by the Controller before such commencement ;
and any such appeal may be disposed of and further proceedings taken in relation thereto and any such right or remedy may be enforced as if this Act had not been passed.'
7. It is admitted that as on July 1, 1960, on which date the Amendment Act is stated to have come into force, the appeal before the Central Board of Revenue against the order passed by the Asst. Controller before that date was pending in this case. There is no difficulty, therefore, in holding that by the operation of Section 29 of the Amendment Act, in this case, the appellate forums before the Appellate Controller and the Appellate Tribunal could not have been availed of by the petitioner. That being the position, the order of dismissal passed by the second respondent on the appeal filed by the petitioner on jurisdictional ground has only to be upheld ; and I do so. The quashing of Ex. P-4 order, or the issue of a writ of mandamus for the disposal of the case to the second respondent, does not, therefore, arise.
8. We will now turn to the merits of the case in regard to the main relief for quashing Ex. P-5 order and directing the 4th respondent to dispose of the petitioner's case conformably to Ex. P-1 judgment as sought in the writ petition. The well-settled position under the I.T. Act is that when the Appellate Tribunal receives the answers given by the High Court in exercise of its advisory jurisdiction on a reference under Section 66 of the Indian I.T. Act, 1922 (s. 256 of the I.T. Act, 1961), it is its duty, conformably with the judgment of the High Court, to dispose of the case after hearing the parties interested in the matter in the light of the evidence and according to law: I.T.A.T. v. S. C. Cambatta & Co. Ltd. : 29ITR118(Bom) , C. P. Sarathy Mudaliar v. CIT : 62ITR576(SC) and Esthuri Aswathiah v. CIT  66 ITR 478. In such cases the appeal before the Tribunal could not be deemed to have been finally disposed of till it disposes of the matter conformably to the judgment of the High Court. This is so for the reason that when a reference is made to the High Court under Section 66, the finality attached to the decision of the Tribunal is set at large, and it is only when the Tribunal disposes of the appeal afresh in conformity with the judgment of the High Court that the appeal is finally disposed of. When the Tribunal disposes of the appeal in accordance with the decision of the High Court, what it exercises is its appellate jurisdiction under Section 33 of the (Indian I.T.) Act ; and the order passed is under Section 33(4) of the Act. All the powers that could have been exercised by the Tribunal at the time of the earlier hearing of the appeal could be exercised by it while it disposes of the appeal in conformity with the decision of the High Court. There is, therefore, great force in the contention of the counsel for the petitioner that the 4th respondent, in law, was bound to give a final disposal of the matter according to law and according to the guideline given by the High Court in Ex. P-1 judgment. The counsel for the revenue, while agreeing with this general principle, would contend for the position that it was open to the Board, in exercise of its appellate jurisdiction, to remand the matter to the Asst. Controller for disposal in the light of Ex. P-1 : judgment. The decision of the Supreme Court in Hukumchand Mills Ltd. v. CIT : 63ITR232(SC) has been relied upon in support of this contention. Some other decisions on this point in income-tax cases have also been cited before me. This again being a well-settled position, I do not think it necessary to refer to them in this judgment. In fact, this position in law is not seriously disputed by the counsel for the petitioner himself. He, nevertheless, seeks to have Ex. P-5 order quashed by the issue of a writ of certiorari on the ground that in declining to dispose of the appeal in accordance with the prayer contained in the petitioner's petition dated February 24, 1974, the 4th respondent has failed to exercise the jurisdiction vested in him under Section 64(7) of the principal Act, inasmuch as its purported remand order dated February 8, 1968, in pursuance of which the first respondent is stated to have issued the notice of enquiry, was passed without giving a notice and affording an opportunity of being heard to the petitioner, and viewed in that background it is null and void in the eye of law. He contends that the helplessness to accede to the petitioner's request for disposing of his case conformably to Ex. P-1 judgment expressed by the 4th respondent in Ex. P-5 order is due to its having erroneously assumed that the matter had already been disposed of finally by an earlier order without noticing that the purported order of remand was non est in the eye of law. The petitioner has yet another contention that the jurisdiction with respect to the reference of disputes relating to valuation (which alone is the material question in the present case) for arbitration to valuers being one confined to the Board in the appeal proceedings as provided under Sub-sections (4) and (5) of Section 63 of the principal Act (which provisions in material particulars correspond to Sub-sections (6) and (8) of Section 63 of the amended Act), great injustice has been done to the petitioner by the purported order of remand which deprived him of his right to move the 4th respondent for referring the matter to the valuers for arbitration, which remedy is not available to the aggrieved party in assessment proceedings under Section 61 of the principal Act (which substantially corresponds to Section 58 of the amended Act) before the Controller. It is the contention of the counsel for the petitioner that it would not be quite correct to equate, the final disposal of the matter by the Board with that of the Controller. From the point of view of the petitioner, therefore, it is submitted, the mechanical remand of the matter by the Board to the Controller is not an innocuous or inconsequential thing ; in effect it amounts to failure on the part of the Board to exercise the appellate jurisdiction vested in it in accordance with the statutory provisions. It is also submitted by the counsel for the petitioner that if at all the 4th respondent required any additional particulars to dispose of the appeal in accordance with the decision of this court, what it ought to have done was to call for a report from the first respondent, without completely abdicating its functions without stating any reasons for doing so, particularly in view of the fact that the provisions relating to arbitration available in an appeal before it are not made available to assessment proceedings before the 1st respondent. Sub-sections (4) and (5) of Section 63 of the principal Act (provisos omitted) applicable to the petitioner's case read as follows :
' (4) Where the dispute pertains to any valuation of property, the Board may, and if the appellant so requires, it shall, refer the question of disputed value to the arbitration of two valuers, one of whom shall be nominated by the Board and the other by the appellant, and the costs of any such arbitration shall be borne by the Board or the appellant, as the case may be, at whose instance the matter was referred to the valuers :...
(5) The valuers may, in disposing of any matter referred to them for arbitration under Sub-section (4), hold or cause to be held such inquiry as they think fit, and, after giving the appellant and the Controller an opportunity of being heard, pass such orders thereon as they think fit and shall send a copy of such order to the appellant and to the Board. '
9. There are no similar provisions relating to the Controller's power in respect of valuations under Section 61 of the principal Act or of assessment under Section 58 of the Amended Act. The power of the Appellate Tribunal under Section 33 of the Indian I.T. Act, 1922 (Act 11 of 1922), and the power under Section 254 of the I.T. Act, 1961 (Act 43 of 1961), are not analogous to that of the Board under the relevant sub-section of Section 63 of the principal or Amended Act. No decision of the Supreme Court or any of the High Courts dealing with a case under the E.D. Act on this point has been placed before me. Inasmuch as the Board has powers and duties to refer to valuers for arbitration of disputes with respect to the valuation of the subject-matter, which the Controller (or the Asst. Controller) does not have, I am of the view that the Board could not have mechanically remanded the matter without a hearing and without stating reasons for doing so, to the Asst. Controller on the assumption that there was no difference between the enquiry to be conducted by the appellate authority on the one hand and that to be conducted by the Asst. Controller on the other. The counsel for the revenue cited the decision of the Calcutta High Court in CIT v. Panna Devi Saraogi : 78ITR728(Cal) and the decision of the Supreme Court in Kesava Mill Co. Ltd. v. Union of India : 3SCR22 , in an attempt to establish that failure to give notice to the petitioner by the Board did not amount to a denial of natural justice, causing any material prejudice to the petitioner inasmuch as it, after all, was only an order of remand, and the proper contest was to be before the Asst. Controller who was directed to enquire and dispose of the matter. I have already pointed out that in view of the fact that the procedure for determination of the valuation to be followed by the Board on the one hand, and the Asst. Controller on the other, is not fully identical, the passing of the order of remand cannot be treated as a mere routine act of no consequence ; there would be cases where such remands could result in a grave miscarriage of justice.
10. The counsel for the revenue then contended that, at any rate, because of long, delay and laches on the part of the petitioner, the relief could not be granted in proceedings under Article 226 of the Constitution. It is also his contention that inasmuch as a remedy by way of reference is provided for by the statute, this court should refrain from exercising the extraordinary jurisdiction, particularly in view of the bar under Article 226(3) of the Constitution. On the question of long delay and laches, it was pointed out that the remand order was passed by the Board as early as on February 8, 1968 ; thereafter the petitioner had participated in the proceedings before the first respondent without demur ; and still later he had filed appeals before the 3rd and 2nd respondents, which he was not in law entitled to do, as he himself ultimately appears to have been convinced from Ex. P-4 order. It is his submission that after having acquiesced in it, as evident from his participation in the proceedings before the first respondent resulting in Ex. P-2 order, and having wasted considerable time in seeking remedies by way of appeals before the second and third respondents to which he was not entitled in law, the petitioner cannot turn round and come to this court with a writ petition, seeking to undo all that has been done till then. To substantiate his contention that where there is a long delay or where an alternate remedy has been provided, this court is not justified in allowing the aggrieved person to invoke the jurisdiction of this court to issue certiorari, the counsel for the revenue has cited the decision of the Madras High Court in CIT v. P. R. Chockalingam Chettiar : 91ITR380(Mad) and the decision of the Allahabad High Court in Ram Niwas Sant Lal v. Sales Tax Officer  15 STC 523. It is true that the High Courts in India, generally speaking, are slow in interfering with orders which were allowed to remain unchallenged for a long time or in cases where the aggrieved party has an efficacious remedy provided by the statute under which the impugned order has been passed. There is, however, no invariable rule that under no circumstance the High Court will exercise its writ jurisdiction in a case where there is long delay or alternate remedy is available. The decision as to whether jurisdiction under Article 226 of the Constitution is to be exercised or not would, by and large, depend upon the peculiar facts and circumstances of the case, and where the High Court is satisfied that to further the ends of justice the exercise of the jurisdiction vested in the court is absolutely necessary, the court will not hesitate to exercise it, to achieve that object. In this context, the nature of the order under challenge has to be carefully considered. The petitioner prays that Ex. P-5 order, rejecting the petitioner's petition dated February 24, 1974, might be quashed on the ground that there was no disposal of the petitioner's appeal before the 4th respondent conformably to Ex. P-1 judgment, in accordance with the provisions of Section 64(7) of the Act. The question is as to whether there was a disposal of the appeal by the 4th respondent under the purported order of remand dated February 8, 1968. There is no case for the revenue that the purported order of remand was passed after hearing the petitioner or at least after giving notice to him. I have already adverted to the difference of the scope of the enquiry before the 4th respondent in appeal proceeding on the one hand and that of the enquiry before the first respondent in assessment proceedings on the other, inasmuch as the provisions similar to what are contained in Sub-sections (4) and (5) of Section 63 of the prinicpal Act are not found in Section 61 of the principal Act (which Act is applicable to the case of the petitioner). The contention of the petitioner is that the purported order of remand dated February 8, 1968, is null and void in the eye of law inasmuch as it is passed without conforming to the procedure dictated by natural justice. Govindan Nair J., as he then was, in C. Abdulla & Co. v. ITO  KLT 1050 observed as follows :
' It is clear from the above rulings that if the assessee has not been given an ppportunity to place his case regarding the materials on the basis of which the assessing authority intended to proceed, there will be violation of the principles of natural justice. If that be so, the order passed in such circumstances will have to be set aside. And this is so even if that order has been taken in appeal and the appeal dismissed. '
11. In Ponkunnam Traders v. Addl. ITO : 83ITR508(Ker) , Mathew J., after having quoted extensively from the decisions of the English Courts and this court, observed (p. 511) :
' I think that when an Income-tax Officer gathers materials from a source other than the records relevant to the year of assessment, he has gathered materials on the basis of enquiry within the meaning of Section 142(3), and, therefore, he will be bound to give an opportunity to the assessee in respect of the materials so gathered. In this case the assessee may have a thousand explanations to offer as to why he could not make the same profit in the year in question as in the previous year. An admission in the return of the percentage of profits from the transaction in dry ginger or pepper made by the assessee in the previous year would be relevant material for a best judgment assessment for the subsequent year provided that an opportunity of being heard on this material was given to the assessee.'
12. At page 521 of the judgment, the legal position has been lucidly expressed as follows :
' The petitioner had no opportunity before the Income-tax Officer to raise the objection that the officer can proceed to assess the petitioner only after giving notice of the materials gathered by him on the basis of the enquiry conducted by him under Section 142(2). He cannot, therefore, be said to have acquiesced in or waived his objection to it. The basis of the decision of Channel J. is that a party who did not raise the objection at the hearing of a case by a person who had a bias should not be allowed to raise it in a proceeding in certiorari. That principle cannot apply here because the petitioner had no notice that the Income-tax Officer would proceed to make a best judgment assessment, and so had no opportunity to raise the objection before him. Even if the petitioner had raised his objection before the appellate authority, it is very doubtful that the appellate authority could have passed a valid order even after complying with natural justice. Normally, as already indicated, neither the appellate authority nor the Commissioner could have passed a valid order, even after complying with natural justice. Assuming that the appellate or the revi-sional authority could have passed an original order of assessment after giving a pre-assessment notice, the right of appeal vested in a party to an Appellate Assistant Commissioner against an original order of assessment would become otiose. Even if no appeal or revision had been filed by the petitioner, it would have been open to the petitioner to approach this court and challenge the order of the Income-tax Officer on the ground of non-compliance with the principles of natural justice. If the order of the Income-tax Officer was a nullity and if the petitioner had no opportunity to object to the procedure which made the order a nullity, I do not think the fact that he did not raise the objection in the appeal or in the revision should be a ground for exercising my discretion against the petitioner. By the appeal and the revision the petitioner has chosen to disaffirm the order. How then can it be said that he has acquiesced in it. Although there is a discretion in this court to decline to issue a writ if the circumstances warrant the same, it is only in exceptional circumstances that the court will decline to issue the writ when it is found that an order of an administrative authority performing a quasi-judicial function is a nullity for the failure to conform to the principle of natural justice of audi alteram partem.'
13. The learned judge has also observed at page 521 of the judgment :
' There is serious danger in making the ultra vires principle, or any part of it, discretionary. Administrative inconvenience should not normally be allowed to distort the law.'
14. Mudholkar J. in Municipal Council, Khurai v. Kamal Kumar : 2SCR653 has held that though an alternate remedy is open to an aggrieved party, the High Court has jurisdiction under Article 226 to give relief to such a party in appropriate cases. In Nawabkhan Abbaskhan v. State of Gujarat : 1974CriLJ1054 , Krishna lyer J. has put the position as follows (p. 1479) :
' We express no final opinion on the many wide-ranging problems in public law of illegal orders and violations thereof by citizens, grave, though some of them may be. But we do hold that an order which is void may be directly and collaterally challenged in legal proceedings. An order is null and void if the statute clothing the administrative tribunal with power conditions it with the obligation to hear, expressly or by implication. Beyond doubt, an order which infringes a fundamental freedom passed in violation of the audi alteram partem rule is a nullity. When a competent court holds such official act or order invalid, or sets it aside, it operates from nativity, i.e., the impugned act or order was never valid.'
15. In Ramchandra Shankar Deoahar v. State of Maharashtra : (1974)ILLJ221SC , the Supreme Court has observed that the court may not inquire into belated or stale claims is not a rule of law but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is a delay the court must necessarily refuse to entertain the petition ; each case must depend on its own facts.
16. The only other point which requires consideration is whether because of the provisions contained in Article 226(3) of the Constitution, there is a bar against this court granting the relief. When the relief sought in a writ petition in essence is for the enforcement of any of the fundamental rights under Part III of the Constitution, incidentally avoiding or ignoring orders which are ex facie null and void or which reflect failure on the part of the authority passing such orders to exercise the jurisdiction vested in that authority, the provisions contained in Article 226(3), in my view, will not constitute a bar against the maintainability of such a writ petition. It is the nature of the order that is under challenge, not the alternate remedy that is available, that is relevant when a question of application of art, 226(3) or Section 58(2) of the Forty-Second Constitution (Amendment) Act, 1976, comes up for consideration. In this case, we have already noticed that the purported order of remand dated February 8, 1968, is null and void in the eye of law. It is also a case where the fundamental rights of the petitioner under Articles 19(1)(f) and 31 of the Constitution are involved. In terms of our Constitution there could be no levy of tax except in accordance with the provisions of law in that behalf. When an order is passed or a levy is made in breach of the fundamental rights guaranteed to him, the aggrieved party is entitled to seek relief in terms of Article 226(1)(a) of the Constitution. I am in agreement with the view expressed by this court in Raghavan v. Executive Officer, Tirupunithura  KLT 749 and the Full Bench of the Gujarat High Court in A'Bad Cotton Mfg. Co. Ltd. v. Union of India AIR 1977 Guj 113, on this question.
17. The counsel for the revenue sought to justify the order passed by the first respondent on the ground that the valuation made is in accordance with the value given in the settlement deed itself, and to allow the petitioner to plead that for the purpose of assessment the valuation should be treated as anything other than that would tend to encourage the assessee to commit malpractice. The decision of the Madras High Court in Coimbatore Spinning & Weaving Co. Ltd. v. CIT : 95ITR375(Mad) was also relied on in support of the contention. I think, this is a contention which could be advanced before the 4th respondent at the time of hearing, not before this court at this juncture.
18. To sum up the position, by the purported order of remand dated February 8, 1968, the 4th respondent could not be deemed to have disposed of the appeal conformably to Ex. P-1 judgment in accordance with Section 64(7) of the principal Act applicable to the case ; in the eye of law it is null and void and the matter remains without being disposed of. The petitioner is, therefore, entitled to remind the 4th respondent that his appeal has to be disposed of conformably to Ex. P-1 judgment, and that is what he has chosen to do when he submitted his petition dated February 24, 1974. . The 4th respondent failed to exercise the jurisdiction vested in it by declining to dispose of the matter as prayed for by the petitioner in his petition dated February 24, 1974, stating that it had already passed an order earlier, and that it was not within its right to pass another order under Section 64(7) of the Act. Interests of justice require that the 4th respondent should be directed to dispose of the matter according to law and in conformity with the decision of this court in Ex. P-1 judgment and giving reasonable opportunity to the petitioner of being heard ; and by adopting that course no prejudice could be caused to the revenue.
19. For the above reasons, the writ petition is allowed. Ex. P-5 order of the 4th respondent is quashed, and the 4th respondent is directed to dispose of the petitioner's appeal conformably to Ex. P-1 judgment of this court, ignoring the purported remand order dated February 8, 1968, and Exs. P-2, P-3 and P-4 orders, after giving due notice and affording an opportunity of being heard to the petitioner. In the circumstances of the case, there will be no order as to costs.