1. These petitions are to quash the orders of the Income-tax Officer, Circle I, Coimbatore, relating to the assessment year 1961-62. By those orders he re-opened under Section 34 of the Income-tax Act, 1922, earlier assessment orders made against each of the assessees, a Hindu undivided family, and included in each case a sum of Rs. 1 lakh to the chargeable income. This is on the view that what was stated to be a loan taken by each of the assessees in the sum of Rs. 1 lakh from Gopalakrishna Mills Private Limited, should be deemed to be dividend within the meaning of Section 2(6-A)(e) of the Act. The Income-tax Officer overruled a contention for the assessees that at the time the loans were made, Gopalakrishna Mills Private Limited had no accumulated profits within the meaning of Section 2(6-A)(e) and that the development rebate reserve with the company could not be considered as accumulated profits for the purpose of that section. The Income-tax Officer accepted the position that but for the development rebate reserve, there was no accumulated profits strictly so called, but was of the view that though the development rebate reserve would not be available for distribution by way of dividends Or profits nevertheless, it, in a sense, represented accumulated profits like any other reserve, and the question whether the creation of particular reserve was a statutory necessity or not was irrelevant in considering the substantial nature or character of the development rebate reserve. On that reasoning he further considered that it was not necessary to correlate the loans with any particular reserve or accumulated profits so long as the same accumulated profit was there with the company. The Income-tax Officer took the view because he thought the funds transferred from the development rebate reserve did not ipso facto go out of the funds of the company and they were only an appropriation out of the company's profits. There were certain other contentions also put forward before the Income-tax Officer, which he did not accept, but which we do not think it necessary for purposes of these petitions to refer to. The assessees filed appeals before the Appellate Assistant Commissioner of Income-tax, Coimbatore, which were actually heard by him on 18th November, 1964. Pending those proceedings they applied for stay of collection which the Income-tax Officer declined to grant. Thereafter, they moved the Inspecting Assistant Commissioner of Income-tax and later the Commissioner of Income-tax, Madras, who gave a certain measure of relief, but not to their complete satisfaction. It was in these circumstances they moved this Court with these petitions under Article 226 of the Constitution.
2. Two main points were taken by the petitioners : (1) levy of tax on the amounts withdrawn by the assessees from the company temporarily was illegal and without jurisdiction, and (2) Section 2(6-A)(e) was ultra vires the Central Legislature. The second point is now concluded by Navnitlal C. Javeri v. K.K. Sen, Appellate Assistant Commissioner of Income-tax (1965) 2 I.T.J. 1 : (1965) 2 Comp. L.J. 1 : (1965) 2 S.C.J. 160 in which the Supreme Court upheld the constitutional validity of that statutory provision. It is the first point, therefore, that is sought to be argued before us. For the Revenue the objection is taken that since the assessees have a right of appeal and actually filed appeals, which were heard and orders are yet to be made, this Court, in the exercise of its discretion under Article 226 should, in view of that decline to entertain these petitions. Since we have decided to accept this objection we have not heard learned Counsel for the assessees on the first point.
3. Article 226 of the Constitution is undoubtedly widely worded and does not place any restraint or restriction on the High Court in the exercise of its jurisdiction under the Article. Even the territorial limitation which originally existed has since been removed. Though the Article refers to certain kinds of writs including certiorari, the power under the Article is not limited to grant of writs analogous to Crown writs in English jurisdiction. The power under the Article extends to the High Court giving any direction, orders or writs for the purpose of enforcement of fundamental rights or for any other purpose. Wide as these powers are, no question of maintainability of any petition, which is filed under that Article, can ever arise. The powers are, however, discretionary in character, so that in particular cases, no question of legality or lawfulness of the exercise of the jurisdiction can properly arise, but the question would be whether, in the particular circumstances, the Court should exercise its discretion and invoke its powers. In the nature of things that consideration will have to be applied in the context of the circumstances in each case. If the Court feels that the circumstances and exigencies of the case taken as a whole require that the Court should exercise its power, it will do so.
4. Certiorari normally goes out to correct errors of jurisdiction, either the lack of it or excess or irregular exercise of it. It also goes out to correct an error apparent on the face of the record, which does not, of course, include an error of a factual nature, or violation of the principles of natural justice. The English Courts in issuing prerogative writs, particularly certiorari, decline to exercise that jurisdiction where an alternative remedy exists which a party may well resort to. But, under Article 226, strictly that limitation may not be applicable as the jurisdiction of High Courts to issue directions is entirely based on the language of the Article. Nevertheless, some of the principles applicable to English writs are borne in mind in giving directions under the Article. Existence of an alternative remedy, which is adequate or otherwise, may not, however, always stand in the way of this Court exercising its jurisdiction if other considerations outweigh. But, normally speaking, existence of an alternative remedy is a strong dissuading factor when powers under Article 226 are invoked. Where a right of appeal is given by a statute from an order, of which a party may feel aggrieved, the question for consideration will be whether the statutory mode of redress should be by-passed, and if so, on what grounds On that matter, decisions of Courts have not been uniform and that with respect is what is to be expected because the Court in each case is concerned with the facts before them and the compelling or justifiable circumstances with reference to which the powers under the Article are exercised. Broadly speaking, where a question of vires or constitutional validity of a statutory provision or a rule or total lack of jurisdiction of the particular officer or forum or an obviously patent error arises, the Court, in our opinion, may well be justified in exercising its power under the Article. That is because in the first of these cases a decision on vires or constitutionality will not be within the competence of the officer or forum other than the superior Courts, and in the second instance, it will be totally futile for a forum without jurisdiction to proceed in the matter involving harassment to the parties and waste of official and private time. Errors of jurisdiction may also come within the purview of the second instance. The last instance justifies interference notwithstanding an alternative remedy, for, the error may be so patent as in the case of, for example, two and two being added as five. In such cases, it is apparent that not to interfere on ground of existence of an alternative remedy may cause gross injustice or great hardship especially when the Court may feel that the party should get relief at the earliest possible moment. Shivaji & Co. v. Joint Commercial Tax Officer (1965) 16 S.T.C. 769 falls under the last category.
5. Learned Counsel for the petitioners in support of his contention that we should entertain the petitions under Article 226 invited our attention to Calcutta Discount Co., Ltd. v. Income-tax Officer : 41ITR191(SC) Bhopal Sugar Industries, Ltd. v. D. P. Dube (No. 2) (1963) 14 S.T.C. 410 Shivaram Poddar v. Income-tax Officer (1964) 1 I.T.J. 476 : (1964) 1 S.C.J. 434 Santamal Pittambar Prasad v. Income-tax Officer : 47ITR562(All) . On the other hand for the Revenue, reference was made to Rex v. Inspector of Taxes and Commissioner of Income-tax 8 T.C 327 C. A. Abraham v. Income-tax Officer : 41ITR425(SC) Thansingh Nathmal v. Superintendent of Taxes : 6SCR654 );'> : 57ITR637(SC) . We do not think it necessary to deal with all these decisions. It will suffice if we refer to the last three decisions which also happen to be the latest.
6. Lalji Haridas v. R.H. Bhatt : 55ITR415(SC) . 418 is a case where, before making an order of assessment notice was issued against the assessee under Section 46(1)(a) of the Saurashtra Income-tax Ordinance, 1949, which corresponds to Section 34(1)(a) of the Indian Income-tax Act. The assessee made a return stating that the amounts in question there did not represent his income at all. The assessee preferred an appeal, with the result that the matter was remitted to the Income-tax Officer. Thereafter the assessee was required to appear before the Income-tax Officer and produce his evidence. Instead of complying with that requisition, the assessee moved the High Court of Gujarat for a writ, while at the same time he also preferred an appeal from the remand order to the Income-tax Appellate Tribunal. The writ petition was dismissed summarily and it was against that order the assessee by Special Leave appealed to the Supreme Court. One of the contentions for the assessee was that the notice issued to the assessee under Section 34(1)(a) was barred by time, and was, therefore, invalid. Dealing with the contention, the Supreme Court observed:
We did not allow Mr. Pathak to develop this point, because we took the view that a plea of this kind must ordinarily be taken before respondent No. 1 himself. The jurisdiction conferred on the High Court under Article 226 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 assessees 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.
7. In Sales Tax Officer v. Shiv Rdtan G. Mohatta : 3SCR71 again the Supreme Court had occasion to consider the question as to how far the High Court should interfere under Article 226. In that case, a firm claimed that it was not liable to be assessed to sales tax in respect of a certain turnover and contended that it was not a dealer within Section 2(f) of the Rajasthan Sales Tax Act. A further contention for the assessee was that the sales were in the course of import within Article 286(1)(b) of the Constitution. The Sales Tax Officer rejected the first contention, but in his order there was no discussion on the other point based on Article 286(1)(b). The assessee then filed a petition under Article 226 and reiterated the two grounds. The State raised an objection to the maintainability of the petition on the ground that the petitioner should have availed himself of the alternative remedy of appeal provided under the Rajasthan Sales Tax Act. The High Court did not accept this objection, because, as it thought, the contention of the petitioner was that in view of Article 286(1)(b) of the Constitution, the Sales Tax Officer had no jurisdiction to assess the petitioner to pay sales tax on the sale of goods in the course of import into the territory of India. The High Court proceeded to deal with the merits of the case and came to the conclusion that the assessee was a dealer and that the sales were also in the course of import. In the circumstances, the State with a certificate of fitness from the High Court filed the appeal before the Supreme Court. There, on behalf of the State two points were raised, one of which was that on the facts of that case the High Court should have refused to entertain that petition. The Supreme Court accepted this ground and held:
We are of the opinion that the High Court should have declined to entertain the petition. No exceptional circumstances exist in this case to warrant the exercise of the extraordinary jurisdiction under Article 226. It was not the object of Article 226 to convert High Courts into original or appellate assessing authorities whenever an assessee chose to attack an assessment order on the ground that a sale was made in the course of import and therefore exempt from tax. It was urged on behalf of the assessee that they would have had to deposit sales-tax, while filing an appeal. Even if this is so, does this mean that in every case in which the assessee has to deposit sales tax, he can by-pass the remedies provided by the Sales Tax Act Surely not. There must be something more in a case to warrant the entertainment of a petition under Article 226, 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.
8. Madhya Pradesh Industries Ltd. v. Income-tax Officer : 57ITR637(SC) , 641 was concerned with a petition for a writ of prohibition restraining the Income-tax Officer from taking any action pursuant to a notice issued under Section 34 of the Income-tax Act. The contention for the assessee was that the notice was without jurisdiction and the exercise of the power under that section by the Income-tax Officer was for a colourable purpose. The Bombay High Court (Nagpur Bench) rejected the petition in limine and the question before the Supreme Court on appeal was whether the High Court acted not properly in refusing to investigate the ground raised by the assessee. In dealing with that question, the Supreme Court observed thus:
Jurisdiction to issue prerogative writs is designed to invest the High Court with authority to superintend the exercise of Governmental or other powers by tribunals, authorities, bodies, or persons: it is intended to be exercised in cases where a person has a right and that right is infringed by a tribunal, authority, body or person acting without or in excess of jurisdiction or in violation of principles of natural justice, or where it refuses to exercise jurisdiction vested in it by law, or even in cases, where there is an error apparent on the face of the record of a quasi-judicial authority and the act, omission or error results in grave injustice. The jurisdiction is discretionary and the High Court is not bound to issue a writ merely because it is lawful to do so. It is also not intended thereby to supersede the authority and jurisdiction conferred upon the taxing authorities who are invested with power to deal with the merits of the contentions raised before them: Lalji Haridas v. R.H. Bhatt : 55ITR415(SC) The High Court must in each case consider, whether the act or omission complained of has resulted or is likely to result in grave injustice, and whether the party approaching it has another adequate remedy which is equally efficacious, whether he has approached the Court without acquiescence, and without undue delay, whether the problem posed raises complicated questions of disputed facts which it would be inappropriate for the High Court to determine, whether the aggrieved party has been guilty of misrepresentation or suppression of material facts, and whether notwithstanding the apparent breach it would be inequitable to grant relief.
9. It is clear, having regard to these three decisions as well as the other cases, that while the power under Article 226 is discretionary, a certain restraint upon its exercise will be called for. The very wide amplitude of the power itself justifies such a restraint and the power could be exercised only in proper cases. Where a statute creates a liability and indicates the forum which will determine such liability and sets up a hierarchy of appellate jurisdictions, it is but proper that the scheme of such a statute is not normally or as a matter of course, by passed and interference is made under Article 226 either at the original or at any subsequent stages envisaged in the statutory scheme. It is true, the power is wide enough to clothe the High Courts with the jurisdiction to interfere even in such cases, but in the exercise of their discretion under the Article, the Court should, in our opinion, 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.
10. In this case, no question of jurisdiction arises. Learned Counsel for the assessees argued that if on a wrong interpretation of Section 2(6-A)(e) the Income-tax Officer charged them to tax, he would be acting without jurisdiction. We are unable to accept this contention. There is a marked distinction between a question of law pure and simple and a question of law involving jurisdiction. The jurisdiction to reopen an assessment is conferred under Section 34 of the Income-tax Act. It is not the contention for the petitioners that the Income-tax Officer is not competent in this case to act under that section. The Income-tax Officer having jurisdiction is, therefore, also competent to interpret the particular section, and it cannot be said that merely because the petitioners consider that he has placed a wrong interpretation on that section, therefore, the Officer acted without jurisdiction or exercised his jurisdiction wrongly. The learned Chief Justice in Rex v. Inspector of Taxes and Commissioners of Income-tax 8 T.C 327 at 329 observed:
Mr. Montgomery concedes that the question whether the deduction is or is not authorised by the Act is a question within the jurisdiction of the Surveyor to determine. In that part of the argument Mr. Montgomery appeared to say I do not know if he seriously meant it that, if the Surveyor decided the question correctly, the matter was within his jurisdiction, but if he decided it incorrectly, the matter was not within his jurisdiction. If that be indeed the argument, it appears to me to confuse two things; an erroneous decision within the jurisdiction and a usurpation of a jurisdiction which does not exist. I think it is a fact that the question which had to be determined here was a question at the outset within the jurisdiction of the Surveyor, and if there is exception taken to the additional first assessment which he has accordingly made, there is a clear right of appeal under the Act, and that right of appeal is at this present moment being pursued by the applicants in this case. I think, therefore, that the application for the writ of prohibition manifestly fails.
11. The question of interpretation of Section 2(6-A)(e) being entirely within the competence of the Income-tax Officer or the Appellate Assistant Commissioner, that can raise no question of his jurisdiction or irregular exercise of it. There is no question of vires of the section arising because, as we said, Navnitlal C. Javeri v. K.K. Sen, Appellate Assistant Commissioner of Income-tax (1965) 2 I.T.J. 1 : (1965) 2 Comp. L.J. 1 : (1965) 2 S.C.J. 160 has upheld the validity of the section. It is not contended for the assessees that there is any infraction of the principles of natural justice. As a matter of fact, the assesses availed themselves of the alternative remedy, have filed appeals, which now have been heard, and orders thereon reserved. We find no exceptional justifiable reasons to persuade us to by-pass the statutory remedies. In view of these circumstances, as we said, we accept the contention for the Revenue that we must leave the assessees to the remedies provided under the Act. These remedies include eventually a Reference to this Court under Section 66 of the Act.
12. The petitions are dismissed with costs. Counsel's fee Rs. 250, one set.
13. Learned Counsel for the petitioners says that it would be desirable that the appeals pending before the Appellate Assistant Commissioner are disposed of at an early date. We think so. Learned Counsel for the Revenue undertakes that he will communicate with the appellate authority, so that it may dispose of the appeals within two months from to day.