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Official Liquidator, Bharatpur Oil Mills (P.) Ltd. (In liquidation) Vs. Income-tax Officer, 'A' Ward and Ors. (24.11.1976 - RAJHC) - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Writ Petition No. 221 of 1975
Judge
Reported in[1979]118ITR1021(Raj)
ActsConstitution of India - Article 226; Income Tax Act, 1961 - Sections 148 and 256
AppellantOfficial Liquidator, Bharatpur Oil Mills (P.) Ltd. (In liquidation)
Respondentincome-tax Officer, 'A' Ward and Ors.
Appellant Advocate P.C. Mathur, Adv.
Respondent Advocate S.K. Mal Lodha, Adv.
Cases ReferredColaba Land & Mills Co. Ltd. v. V.S. Deshpande
Excerpt:
.....by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the court will take these facts into consideration. - it was said that, in the present case, the assessee had filed a return and, therefore, it could not be said that there was omission or failure on its part to file a return. further, it is said that the assessee having filed all the necessary documents along with the return, it could not be said that he failed to disclose fully and truly all material facts necessary for the assessment. state of rajasthan .9. the other preliminary objection, namely, that the petitioner has an equally efficacious alternative remedy by way of an appeal and, therefore, the writ petition could not be..........circle i, jaipur, having come to know about the transfer of the capital assets of the company, issued a notice dated july 24/25, 1967, under section 148, with a view to bring to tax in the hands of the assessee the income derived therefrom, requiring the official liquidator to file a return of the said income. in pursuance of the aforesaid notice, the official liquidator filed a return dated october 4, 1967, on october 7, 1967. in the section regarding capital gains, the income was shown as 'nil', although along with the return certain documents were filed giving details of the transfers effected by him as per 'annexs. i to j '.3. the assessee raised a preliminary objection to the jurisdiction, of the ito to issue a notice under section 148 of the act, on the ground that no such.....
Judgment:

A.P. Sen, J.

1. This is a petition by the official liquidator acting for the Bharatpur Oil Mills (P.) Ltd. (In liquidation) for the issue of a writ of certiorari, prohibition or other appropriate writ, direction or order under Article 226 of the Constitution, by which the petitioner challenges the validity of a notice dated September 27, 1972, issued by the ITO, 'A' Ward, Kota, under Section 148 of the I.T. Act, 1961.

2. During the assessment year 1966-67, the previous year of which corresponded to the year ended on March 31, 1966, the official liquidator effected sales of capital assets of the company in liquidation, i.e., machinery, plants, etc., on August 5/6, 1965, under the order of the High Court for a sum of Rs, 6,35,000. It appears that one-fourth of the auction price was deposited on August 9, 1965, and the company accepted the bid on August 18, 1965. In December, 1965, the official liquidator sold a truck and a tank for Rs. 3,275 and Rs. 1,100, respectively. The ITO, Companies Circle I, Jaipur, having come to know about the transfer of the capital assets of the company, issued a notice dated July 24/25, 1967, under Section 148, with a view to bring to tax in the hands of the assessee the income derived therefrom, requiring the official liquidator to file a return of the said income. In pursuance of the aforesaid notice, the official liquidator filed a return dated October 4, 1967, on October 7, 1967. In the section regarding capital gains, the income was shown as 'nil', although along with the return certain documents were filed giving details of the transfers effected by him as per 'annexs. I to J '.

3. The assessee raised a preliminary objection to the jurisdiction, of the ITO to issue a notice under Section 148 of the Act, on the ground that no such notice could be issued without the leave of the court as required by Section 446 of the Companies Act. The objection was based on the decision of a learned single judge of the Bombay High Court in Colaba Land and Mills Co. Ltd. (In liquidation), In re : [1968]67ITR399(Bom) . In view of that decision, the C.B.R. issued a circular that no proceedings under Section 148 of the Act should be taken without obtaining the requisite leave of the court under Section 446. In consequence thereof, the ITO dropped the proceedings under Section 147 of the Act on September 19, 1969.

4. The decision of the single judge in Colaba Land and Mills Co. Ltd., In re : [1968]67ITR399(Bom) was, however, reversed by a Division Bench of the Bombay High Court in Colaba Land and Mills Co. Ltd., In re : [1970]78ITR584(Bom) . Their Lordships of the Supreme Court have confirmed the decision of the Division Bench in Kondaskar (S. V.), Offi. Liq., Cobala Land and Mills Co. Ltd. v. Deshpande (V. M.), ITO : [1972]83ITR685(SC) .

5. In view of the decision of the Supreme Court in : [1972]83ITR685(SC) , the ITO, 'A' Ward, Kota, issued the impugned notice dated September 27, 1972, under Section 148. The notice under Section 148, annex. 'E', states that the ITO had reason to believe that income chargeable to tax for the assessment year 1966-67 had escaped assessment within the meaning of Section 147 of the Act and required the assessee to file a return.

6. The validity of the notice is challenged on the ground, firstly, that there was initial lack of jurisdiction on the part of the ITO inasmuch as the return dated October 4, 1967, filed by the assessee, in response to the first notice dated July 24/25, 1967, issued under Section 148, could, not be ignored, and the assessment should, therefore, have been completed within the period of 4 years as required under Section 153(1)(a) and the second notice dated September 27, 1972, issued under Section 144 was nothing but a device to get over the bar of limitation, and secondly, that the conditions pre-requisite for the issue of a notice under Section 147(a) were not in existence. It was said that, in the present case, the assessee had filed a return and, therefore, it could not be said that there was omission or failure on its part to file a return. Further, it is said that the assessee having filed all the necessary documents along with the return, it could not be said that he failed to disclose fully and truly all material facts necessary for the assessment.

7. Shri S.K. Mal Lodha, learned counsel for the revenue, raised twopreliminary objections to the maintainability of the writ petition. Thefirst is that the writ petition, which was filed on January 10, 1975, washighly belated and there is no explanation for the unreasonable delay. Thesecond is that the petitioner has an equally efficacious alternative remedyby way of an appeal, second appeal and a case stated. Both the objectionsmust, in our view, prevail.

8. In the instant case, there is unexplained inordinate delay in filing the writ petition. The explanation prefered by Shri Mathur, learned counsel for the petitioner, that the department did not furnish the assessee with certified copies of the documents, annexs. 'I to J', is neither here nor there. There was no need to file any other document except the impugned notice. Nothing prevented the petitioner from filing the copies of the other documents, if he felt that they were necessary. The ITO in his affidavit in support of the rejoinder specifically raised the ground of delay in para. 17. The petitioner in his affidavit in answer has given no explanation. There is a long catena of cases that the powers of the High Court to issue these high prerogatory writs is discretionary. Where the petitioner is guilty of laches, the court is not bound to issue any writ or direction : Durga Prasad v. Chief Controller of Imports and Exports : [1969]2SCR861 , Tilokchand Motichand v. H.B. Munshi, Commr. of ST : [1969]2SCR824 , P.S. Sadasivaswamy v. State of Tamil Nadu : [1975]2SCR356 , Amrit Lal Berry v. Collector, Central Excise : (1975)ILLJ144SC and Hastimal v. State of Rajasthan .

9. The other preliminary objection, namely, that the petitioner has an equally efficacious alternative remedy by way of an appeal and, therefore, the writ petition could not be entertained is well founded. As repeatedly laid down by their Lordships of the Supreme Court in C.A. Abraham v. ITO : [1961]41ITR425(SC) , Gita Devi Aggarwal v. CIT : [1970]76ITR496(SC) , Champalal Binani v. CIT : [1970]76ITR692(SC) and S.V. Kondaskar, Offl. Liq., Colaba Land & Mills Co. Ltd. v. V.S. Deshpande, ITO : [1972]83ITR685(SC) , the I.T. Act provides a special machinery for assessment of tax and imposition of penalty and for obtaining relief in respect of any improper order passed by the ITO. The petitioner is, therefore, at liberty to raise the objection before the ITO. If he is dissatisfied, he has the remedy of an appeal to the AAC under Section 246, and thereafter by way of a second appeal to the Tribunal under Section 252 and by a case stated under Section 256 of the Act. In view of these provisions, the assessee cannot be permitted to circumvent the normal remedy, and resort to the extraordinary jurisdiction of the High Court under Article 226 of the Constitution.

10. We refrain from expressing any opinion on merits though the learned counsel addressed us on all the points at great length. Suffice it to say, Shri S.K. Mal Lodha, learned counsel for the revenue, also placed before us the record of the case which shows that the ITO, 'A' Ward, Kota, has recorded detailed reasons on September 4, 1972, for initiating proceedings under Section 147(a) and for issuing notice under Section 148 of the I.T. Act, 1961. The proceedings were started after the Commissioner accorded the requisite sanction under Section 151(2). There is, therefore, no substance in the contention that the conditions prerequisite for the issue of the notice under Section 148 were not there.

11. The writ petition is, therefore, dismissed summarily.


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