ARUN K. MUKHERJEA J. - This is an appeal against a judgment and order dated 19th November, 1965, of Banerjee J. by which the appellants application for quashing of certain proceedings under section 33B of the Income-tax Act was dismissed.
When the matter came up for decision before Banerjee J. various points were urged including the point as to whether the appellant had been given reasonable opportunity of being heard, before the Commissioner of Income-tax exercised his powers under section 33B of the Indian Income-tax Act, 1922, for the purpose of revising the assessment of the appellants income for the assessment years 1959-60 to 1961-62. Banerjee J. found that all the points raised by the appellant except the point as or reasonable opportunity were covered by a decision of this court in Kalawati Debi Haralalka v. Commissioner of Income-tax and did not require any fresh consideration. These points that the learned judge seriously considered and then decided against the appellant-petitioner was the point as to reasonable opportunity. At the time of hearing of this appeal Mr. A. K. Sen, appearing on behalf of the appellant, also confined himself to the point of reasonable opportunity. Therefore, in relating the facts and circumstances of this case we confine ourselves only to those which are relevant for consideration of the point of reasonable opportunity.
On October 19, 1963, the Commissioner of Income-tax (hereinafter referred to as the Commissioner) issued a notice addressed to the appellant concerning a proposed revision under section 33B of the Indian Income-tax Act of the assessments of the appellant-petitioner for the years 1959-60 to 1961-62. In the letter constituting this notice it is stated that according to the Commissioner the orders of assessment passed by the Income-tax Officer 'D' Ward on 28th November, 1961, in respect of the a aforesaid assessment years had been 'erroneous in so far as they were prejudicial to the interests of revenue.' The Commissioner in that letter gave reasons as to why he considered those orders erroneous and then stated that he proposed to pass orders on those cases after giving the appellant-petitioner an opportunity of being heard. The hearing was fixed on 2nd November, 1963, at 10-30 a.m. at the office of the Commissioner where the appellant was requested to produce all necessary evidence. The Appellant was also told that any written objections accompanied by necessary evidence in support of these objections received on or before the appointment for personal hearing would be dully consider by the Commissioner. This notice, as we shall presently see, was never served on the appellant in item. The notice was sent by registered post to three addresses viz., (i) 7, Banerjee para Street Uttarpara, Hooghly, (ii) 2, Grand Trunk Road, Ballykhal, Howrah, and (iii) 47, Banerjee Para Street, Uttarpara, Hooghly. All these three registered letters were served upon the appellant on or about 18th November, 1963, through a post office in Midnapore. In the meantime the Commissioner caused a copy of the notice to be served upon the petitioner by affixation at No. 2, Grand Trunk Road, Ballykhal, Howrah, on 22nd October, 1963. There is lot of controversy regarding the factum as well as the validity of this service. We shall in due course deal with those controversies. But it is necessary now to take notice of two statement of H. P. Neogi, Income-tax Inspector, dated 21st October, 1963, and 22nd October, 1963, respectively. These were in the shape of reports submitted by him to his office. The reports are so important for the purpose of this appeal that I consider it necessary to setup out these reports verbatim. The reports were as follows :
Report dated 21st October, 1963.
'Reg. - Sri Ramendra Nath Ghosh for & on behalf of Sailendra Nath Ghosh & Ors. of 2 G. T. Road, Ballykhal, Howrah.
Sm. Sibani Rani Ghosh, 2, G. T. Road, Ballykhal, Howrah.
Sm. Rashmoni Ghosh, 2, G. T. Road Ballykhal, Howrah.
Sri Ramendra Nath Ghose, 2, G. T. Road, Ballykhal, Howrah.
Had been to the above address for serving the notice u/s. 33B on the above assessee. In contacted two persons who had been working there and gathered from them that Mr. Ramendra Nath Ghosh, a member of their family who is usually available there, had just then left for Calcutta and that he would not turn up during the rest of the day. They have however asked me to call on Mr. Ghosh tomorrow. Accordingly, I have fixed up a time and have left a slip, requesting Mr. Ghosh to wait for me.
H. P. Neogi,
Re : Inspector will please try to serve the notices tomorrow on Sree Ramendra Nath Ghosh & Ors., failing which the notice should be served by affixation.
Report dated 22nd October, 1963.
'Reg : Sri Ramendra Nath Ghosh for and on behalf of Sailendra Nath Ghosh Ors. of 2, G. T. Road, Ballykhal, Howrah.
Sm. Sibani Rani Ghosh, 2, G. T. Road, Ballykhal, Howrah.
Sm. Rashmoni Ghosh, 2, G. T. Road, Ballykhal, Howrah.
Sri Ramendra Nath Ghosh, 2, G. T. Road, Ballykhal, Howrah.
Today also I had been to the above address again but unfortunately Mr. Ramendra Nath Ghosh was not available at the appointed me. However, I contacted the said persons whom I saw there yesterday. Enquired about Mr. Ramendra Nath Ghosh, they informed that Mr. Ghosh has left the station and is expected back after a month or so. On further enquiry they informed that there was no second man to receive the notice in the absence of Mr. Ghosh. Mr. Ghoshs correct address and the place for which he left were not also furnished. From my conversation with them it appeared to me that they were avoiding the service of the notice. In the circumstances, I contacted the I. T. O. concerned and served the notice by affixation under his orders.
H. P. Neogi,
These two reports should be read with an affidavit made by Shri H. P. Neogi on 22nd October, 1963. The affidavit was in the following terms :
'I, H. P. Neogi, Inspector of the office of the I. T. O. Howrah, Calcutta, solemnly affirm and declare :
That on 19th October, 1963, I received a notice No. J 26569 C. T. dated 19th October, 1963, from the Commissioner of I. T. W. B. for service on Sri Ramendra Nath Ghosh, 2, G. T. Road, Ballykhal, Howrah. I attempted to contact the assessee for personal service on 21st October, 1963, between the hours 1 p.m. to 2 p.m. and again on 22nd October, 1963, between the hours 2 p.m. to 3 p.m. and having failed in these attempts I have served the above notice by affixation on 22nd October, 1963, between the horse 3 p.m. to 4 p.m. in the presence of Sri Nakueshwar Chakrabarty, peon Howrah.
H. P. Neogi,
On November 2, 1963, the Commissioner passed an order under section 33B of the Income-tax Act, 1922, the order was passed ex parte as neither the assessee, i.e., the petitioner, nor anybody on his behalf was present. It is not necessary for us to go into the contents of this order except to take note of what the commissioner says regarding the notice that he had served on the petitioner. For that purpose it is enough to set out the first two paragraphs of the Commissioners order which were as follows :
'As on calling for and examining the records of the proceedings under the Income-tax Act, 1922, for the assessment years 1959.60 to 1961-62, in the case of the above-mentioned assessee, I considered that the assessment orders passed by the Income-tax Officer, D-Ward, Howrah, for these assessment years were erroneous in so far as they were prejudicial to the interests of the revenue, a show cause notice was issued to the assessee by a letter dated 19th October, 1963, for giving him an opportunity of being heard today, i.e., on 2nd November, 1963.
2. In response to this notice nobody has attended in person nor any written communication has been received so far, as served by the Inspector by affixation. I am satisfied that the notice has been served properly and therefore proceed to pass order ex parte on the basis of the merits of the case. As the points involved in all the assessments are common, they are disposed of by a consolidated order.'
It will be notice that the Commissioner was satisfied that proper service of the notice had been effected that on the basis of this satisfaction he passed an order ex parte. The Commissioner cancelled the previous assessments of the petitioner under section 33B of the Income-tax Act and directed fresh assessment after proper enquiries and investigation.
By a letter dated 24th January, 1964, addressed by the appellants solicitors, Messrs. Mukherjee & Biswas, to the Commissioner, a protest was lodged against this order dated 2nd November, 1963. It was stated in that letter that the notice to the appellant about a hearing on 2nd November, 1963, had in fact been delivered to the appellant on 18th November, 1963. The letter called upon the Commissioner to recall and rescind the notice of 19th October, 1963, as well as the order passed on 2nd November, 1963. There was further correspondence between the income-tax authorities and the appellant regarding this order passed on 2nd November, 1963, with which we are not really concerned for the purpose of deciding this appeal. The present petition was made some time in February, 1964, praying for a writ of certiorari to quash the order of 2nd November, 1963, as well as the proceedings relating thereto and for other appropriate writs and orders. Sinha J. (as his Lordship then was) issued a rule nisi on 26th February, 1964. His Lordship also granted a temporary stay of the proceedings. Before the petition came on for hearing, an affidavit-in-opposition affirmed by one Krishnarao Bhadra Narasinham, Income-tax Officer, 'D' Ward, Howrah, was filed on behalf of the respondents. In that affidavit it was claimed that the notice dated 19th October, 1963, as proper and valid and also that the notice had been properly and validly served. Beyond making a bare statement to this effect no further particulars of service had been mentioned in that affidavit. When the matter came up for hearing, the respondent, it appears were asked top furnish particulars regarding the service of notice on the petitioner. Pursuant to that direction one Dwijendra Nath Banerjee, Income-tax Officer, 'D' Ward, Howrah, made an affidavit wherein, on the basis of information received from the records of the case, the deponent made certain statements regarding the mode of service of the notice upon the petitioner. The income-tax authorities were subsequently compelled to resile from all the statements made in this affidavit and top abandon the case made in this affidavit completely. It is necessary, however, top state what was they first case made out by the respondents on this point. The two relevant paragraphs of the affidavit of Dwijendra Nath Banerjee dated January 19, 1965, are as follows :
'2. I state that notice dated 19th October, 1963, under section 33B of the Income-tax Act, 1922, was sent by registered post to No. 7, Banerjee Para Street, Uttarpara, Hooghly as also No. 47, Banerjee Para Street, Uttarpara, Hooghly, and No. 2, Grand Trunk Road, Ballykhal, Howrah. The said letter was properly addressed and all necessary fees were rarely paid. I crave leave to refer to the receipt of the postal authorities to that effect. I appears that the said registered letters were received by the assessee on the 22nd November, 1963. In view of the delay in receiving the said letters the income-tax department made enquiries of the postal authorities and a copy of the letter written to the postal authorities and the reply from them are annexed herewith in a bundle and marked with the letter A. It appears that the assessee was avoiding service.
3. I further state that attempt was made to serve on Ramendra Nath Ghosh at No. 2, Grand Trunk Road, Ballykhal, Howrah. The Inspector went on the 21st October, 1963, and as he could not find the petitioner made a report to the Income-tax Officer. The Income-tax Officer gave certain directions for the purpose of service. Thereafter, the service was effected. The report made by Sri H. P. Neogi, Inspector, who went to serve as well as the order of the Income-tax Officer dated 21st October, 1963, and the report of the process-server are annexed herewith in a bundle and marked with the letter B'.
It will be noticed that the income-tax authorities were at this stage making out two cases. First, their case was that with regard to the notice sent out on 19th October, 1963, under registered post, the assessee was avoiding service. Secondly, they say on the basis of the report of their Inspector that the notice in question had been served by affixation. I have already set out the two reports of H. P. Neogi, as well as his affidavit was based at this stage. Even at this the income-tax authorities were admitting that there registered letters had been delivered only on 22nd November, 1963. They made enquiries from the Post Master, Uttarpapra Post Office as to why registered letters issued on 19th October, 1963, took such a long time to the served. After some correspondence, the sub-postmaster, Uttarpara, in a letter dated 10th March, 1964, informed the Commissioner that the registered letters in question had been received at Uttarpara on 22nd October, 1963, and the postman, after an attempt to delivered at Uttarpara on 22nd October, 1933, and the postman, after an attempt top deliver the letters, returned them with an explanation 'to be kept in deposit for seven days as per instruction of the other inmates of the house'. After the expiry of seven days when the letters were again given out for delivery the letters were redirected to Bhubaneshwar in accordance with instructions given by other occupants of the house. The letters subsequently came back from Bhubaneshwar on 22nd November, 1963, and were delivered on the same date. It is presumably on the basis of this particular report of the sub-post master, Uttarpara, that Dwijedra Nath Banerjee in his affidavit contended that the assessee was avoiding service.
The petitioner-appellant in his petition state that he had left Uttarpara on 10th October, 1963, along with other members of his family for a place called Siljora with the object of spending the puja vacation with certain relatives. He and his sister-in-law fell ill and were treated at Siljora. The notices were served on them at Siljora on 18th November, 1963. The petitioner has tried to give some evidence about his having been at Siljora but it is not necessary to refer to those items of evidence. The petitioner in his affidavit dated 29th January, 1965, filed in reply to the aforesaid affidavit dated 19th January, 1965, of Dwijendra Nath Banerjee, flatly contradicted the story of the income-tax authorities that the registered letters had been served on him on the 22nd November, 1963. He insisted that the letters had been delivered to him on 18th November, 1963. He takes exception to the fact that the correspondence with the postal authorities on the basis of which Dwijendra Nath Banerjee made his affidavit had been available to the income-tax authorities from long before 28th April, 1964, when they filed their first affidavit-in-opposition and yet the income-tax authorities had made no mention of these alleged facts in their first which I prefer to set out in extenso because ultimately the income-tax authorities had to admit most of the appellants affidavit of 29th January, 1965, which was in the following terms :
'4. With further reference to paragraph 2 of the affidavit I say the allegations in the letter dated 10th March, 1964, purported to have been written by the sub-postmaster, Uttarpara, to the Commissioner of Income-tax, West Bengal III, are untrue in the following material particulars -
(i) The registered letters were not received on 22nd October, 1963, by the Uttarpara Post Office but were received on 23rd October, 1963.
(ii) The letters were not kept in deposit for seven days.
(iii) No instructions could be given by the inmates of the house as all the members of the family along with me had left Uttarpara to avail themselves of the Puja holidays.
(iv) The letters were not redirected on the expiry of seven days.
(v) The letters were never redirected to Bhubaneshwar.
(vi) The letters could not be even instructed by any of the occupants of the house to be redirected to Bhubaneshwar.
(vii) The letters were not received back on the 22nd November, 1963.
(viii) The letters were not delivered to me on the 22nd November, 1963.'
In the same affidavit of the appellant, he also countered the story of the income-tax authorities about the service by affixation at No. 2, Grand Trunk Road, Ballykhal, Howrah. He states that Bally Pug Mill Works Private Ltd. had gone into voluntary liquidation some time before the attempted service. Though the appellants does not admit that the Inspector went to No. 2 Grand Trunk Road, Ballykhal, the appellant contends that there was no justification for trying to serve the notice on him at No. 2, Grand Trunk Road, which was not his residence and which was only the address of the registered office of a company which had gone into liquidation.
It appears that, when the matter came up for hearing before Banerjee J., the income-tax authorities resiled from the position they had taken earlier and as a result they were asked by Banerjee J. to file yet another fresh affidavit. This was done and an affidavit affirmed by one Parimal Kanti Das, inspector of the income-tax department, on 1st March, 1965, was filed again. In this affidavit the income-tax authorities have taken a completely new stand. Parimal Das states as follows :
'2. It appears that in respect of Ramendra Nath Ghosh the notice dated 19th October, 1963, under section 33B of the Income-tax Act, bearing No. J/26569 C. T. was sent by registered post to three addresses. The registered letter No. 170 was sent to him at No. 7, Banerjee para Street, Uttarpara, Hooghly, the registered letter No. 171 was sent top him to No. 2, Grand trunk Road, Ballykhal Para Street, Uttarpara, Hooghly. It appears that the said registered letters Nos. 170, 171 and 177 were served upon the assessee through the same Post Office in Midnapore on or about 18th November, 1963, and the acknowledgment receipt of the registered letters came back to this office.'
In the affidavit there are references to various other letters but they are really connected with analogous proceedings in respect of some of the other relations of the petitioner with which we are not concerned in this appeal. Annexed to this affidavit there is a letter dated 15th February, 1965, from the Additional Income-tax Commissioner, West Bengal III, to sub-postmaster, Uttarpara, as well as a letter from sub-postmaster, Uttarpara, to the Income-tax Commissioner. In the letter to the sub-postmaster, Uttarpara, the Additional Income-tax Commissioner writes with reference to an earlier dated 10th March, 1964, from the said sub-postmaster :
'In para. 2 of your letter you stated that the registered covers referred in our reference were served on the addressee on 22nd November, 1963. This is not correct. The acknowledgments subsequently received show that the covers were served on the addressee on 18th November, 1963. The date of service of 22nd November, 1963, relates to four other covers registered on 18th November, 1963, covered by registration receipts Nos. 93, 94, 95 and 144 as seen from the records of this office.'
The sub-postmasters reply to the Income-tax Commissioner was in the following terms :
'Beg to report that Rt. Nos. 96, 97, 179, 177, 175, 178, 172 and 170 being received here were entrusted to the postman when those were kept in deposit for 7 days as the addressees were absent and subsequently they were redirect led to Barbil (Balasore) on 29th October, 1963. Subsequently, Rt. Nos. 178, 175, 179 and 172 were received through Kharagpur RB on 20th November, 1963, the Rt. Nos. finally were delivered on 22nd November, 1963, under clear receipt. They were kept in deposit on 21st November, 1963, as absent which transpire from the explanation of the postman.
As regards 96, 97, 170 and 177 they were not received back. From the Acts shown by Sri P. Das an official of the Income-tax Commissioners office it appears that they have been delivered from Midnapore P. O. or by some other P. O. under Midnapore as the seals are a bit indistinct.'
It may be mentioned that we are concerned with registered letters Nos. 170 and 177 in the instant case. From these letters it is quite clear that the letters had been kept in depots for seven days as the addressees were absent and subsequently they were redirected to Barbil (Balasore.) Later, on these two letters were delivered to the appellant from Midnapore post office or from some other post office under Midnapore.
On these materials Banerjee J. came to the following findings on the question whether notices under section 33B of the Income-tax Act, 1922, had been served on the petitioner :
(i) The petitioner has different addresses on of which is No. 2, Grand Trunk Road, Bally;
(ii) His residential addresses were No. 7 (re-numbered as No. 5) Banerjee Para Street and No. 47, Banerjee Para Street, Uttarpara;
(iii) Notices had been sent by registered post to the admitted residential address of the petitioner;
(iv) The notices were sought to be delivered by the postman at the admitted residential address at Banerjee Para Street;
(v) The story in the affidavit of Krishna Chandra Ghose, the petitioners nephew that the postman refused to deliver the letters to him is not acceptable;
(vi) The official version of the post office contained in their letter of March 10, 1964, was more acceptable and according to that story the letters were first kept in deposit for seven days and later re-directed as per instructions of the inmates of the house;
(vii) The delay in service of the registered notices was 'caused or manipulated by the petitioner himself' so that the petitioner cannot be heard to complain about this delay;
(viii) The petitioner when he left his residence for another place did not make any arrangement for receipt of notices in his absence. Therefore, the petitioner himself created a situation in which the delivery was not possible;
(ix) The income-tax department, therefore, offered proper opportunity of being heard to the petitioner but the petitioner by his own conduct could not avail of the opportunity;
(x) The notice sent to No. 2, G. T. Road had been served by affixation;
(xi) The serving officer had gone there 'at a reasonable time';
(xii) The serving officer, when he affixed the notice on the second day No. 2, G. T. Road after he had returned to that place for serving the notice on the following day, had acted legally;
(xiii) The story about the return of service must, therefore, be accepted.
We shall deal with the learned judges findings in two broad divisions, viz., first, his finding as to service of the registered letters at the residential address of the petitioner and, secondly, his finding regarding the service by affixation of the notice at No. 2, G. T. Road, Ballykhal.
With regard to the registered letters, the learned judges findings are, if we may say with the utmost respect, palpably wrong. The learned judge relied for his fondings principally on a letter dated March 10, 1964, written by the sub-postmaster, Uttarpara, to the Commissioner. The learned judge overlooked that this letter had been abandoned not only by the income-tax department but also by the postal authorities themselves. The main statement of fact contained in that letter, namely, that the letters had been redirected to Bhubaneshwar and received back from Bhubaneshwar on 22nd November, 1963, is wrong. The letters had never been redirected to Bhubaneshwar at all and they were not delivered to the petitioner on 22nd November, 1963. There is now no room for controversy about this. Indeed, the learned judge himself mentions in his judgment that the acknowledgment receipts do not bear out the statements in the letter of the postal department and that that is why his Lordship had found it necessary to give a further opportunity to the income-tax authorities to make a better affidavit. The learned judge also quotes in extenso from the affidavit that was filed thereafter and in which the income-tax authorities admit that the letters had been served upon the petitioner through some post office at Midnaore on or about 18th November, 1963. The whole story in the letter of 10th March 1964, is given a complete go by the respondents. The learned judge also quotes in extenso from the letter of February 15, 1965, written by the Commissioner to the postal authorities in which the income-tax authorities contended that the statement that the letters had been served on the petitioner on 22nd November, 1963 was 'not correct'. The learned judge also quotes from the reply of the postal department in which that department clearly admits that the letters in question were redirected to Barbil (Balasore) on 29th October, 1963, and, thereafter, delivered somewhere in Midnapore. There cannot be the slightest doubt that the letter of 10th March, 1964, is based on complete misapprehensions and the value of that letter as a piece of evidence is just nil and yet the learned judge relied on that letter and found the official version of the post office contained in that letter to be more acceptable. With great respect, we find it impossible to subscribe to the learned judges findings on this point. Mr. Gouri Mitter, appearing for the respondents, with his usual fairness admitted that he could neither rely on nor support the learned judges judgment on this point. Indeed, Mr. Mitter conceded that, so far as the service of the notices by registered post is concerned, the respondents have no case at all. Those notices were unquestionably served long after the order under section 33B of the Income-tax Act, had been passed. The facts on the basis of which the respondents had at one stage claimed that the appellant was avoiding service are completely wrong facts and both the postal authorities and the respondents have abandoned those facts. Banerjee J. was, therefore, obviously wrong in accepting a claim and a contention which was jettisoned by the very party which had advance them.
It was also pointed out to us that in connection with another petition viz., Matter No. 65 of 1964 between the same parties where the question of service of a notice under section 33B had to be decided on exactly identical facts, the learned judge himself had come to a finding that the notice had not been properly served upon the petitioner. It only remains for me to point out that the notice in that case as well as the notice in the instant case were sent out together, though under separate covers, on the same day, i.e. on 2nd November, 1963, and also served upon the petitioner simultaneously on 18th November, 1963. Besides, in that case also, another copy of the notice was served by affixation at No. 2, G. T. Road, Ballykhal, along with the notice in the instant case. Indeed, the facts are exactly identical without the slightest variation in any detail whatsoever and yet the learned judge came to completely contrary findings in these two matters. It is not for use top explain how this could be possible. But it was suggested to us from the bar that the difference in the findings might possibly be accounted for by the fact that in Matter No. 65 of 1964, which is now the subject-matter of appeal from Original Order No. 90 of 1965, his Lordship had delivered the judgment on 14th January, 1965, while in the present matter his Lordship delivered the judgment on 19th November, 1965, a long time after the arguments had been concluded. Anyway, whatever may be the reason for the difference in the findings of the learned judge on the same set of facts, we must resectfully disagree with the learned judge so far as his Lordships findings regarding the service of the registered letters in this case are concerned.
We now proceed to consider whether there was proper service by affixation of the notice at No. 2, Grand Trunk Road, Ballykhal. The case of the income-tax authorities is founded on two reports of H. P. Neogi, inspector of taxation dated 21st and 22nd October, 1963, respectively as well as the affidavit affirmed by H. P. Neogi on 22nd October, 1963. I have already set out the two reports as well as the affidavit in my judgment. The appellants case about this service by affixation is to be found in paragraph 6 of his affidavit-in-reply dated 29th January, 1965. This is what he says in that affidavit :
'I am not aware of the alleged attempts made to serve a notice upon me at No. 2, Grand Trunk Road, Ballykhal, Howrah. In any event such alleged attempts could not have been successful inasmuch as Bally Pug Mill Works Private Ltd., was at the material time closed on account of voluntary liquidation of the said company, and that the respondents had due and proper notice thereof would be apparent from the assessment order made on the said Bally Pug Mill Works Private Ltd., on 24th February, 1964. I crave reference to the same.
I am not aware as to whether the inspector went to No. 2, Grand Trunk Road, Ballykhal, Howrah, on 21st October 1963, and I do not admit the same. As I was not in at No. 2, Grand Trunk Road, Ballykhal, Howrah, on 21st October, 1963, it is possible that the said Inspector did not find me. I do not admit the correctness of the said alleged purported report on 21st October, 1963. The said alleged report in any event is vague inasmuch as the names of the two persons contacted at No. 2 Grand Trunk Road, Ballykhal, Howrah, had not been given and the allegations in the said report that I had just left Calcutta and that I would not return for the rest of the day are false, inasmuch as I had left Howrah for a holiday on the 10th October, 1963. In the premises the allegation that the said two alleged persons asked the Inspector to call on me next day is also unture. It is significant that a copy of the slip alleged to have been left with the said persons asking me to wait for the Inspector has not been annexed to the affidavit nor has inspection thereof been given to me in spite of requests. It is further significant that the name of the person asking the inspector top serve the notice on me the next day and failing to meet me by affixation has not been disclosed in spite of requests.'
Mr. Sen appearing for the appellant condemned the two reports of H. P. Neogi as well as his affidavit with great vehemence. He complained first that No. 2, Grand Trunk Road, Ballylhal, Howrah, being the address of a company which had already gone pinto voluntary liquidation there was no point in affixing the notice at that address. The whole story of the inspector centers round what he had been told by top persons who are alleged to have been working at No. 2, Grand Trunk Road, Ballykhal. These two person whose names have not been given in the reports are alleged to have top the inspector that Ramendra Nath Ghosh was a member of their family and that Ramendra Nath Ghosh was usually available there and had just left for Calcutta on the 21st October, 1963. They are also alleged to have asked the inspector to call on the following day. Inspector Neogi records that he fixed a time and left a slip requesting the appellant top wait for him. Then on the next day when he called, he met the same two persons again and was told that the appellant had left the station and was expected back only after a month or so. They could not give the correct address of the place for which the appellant had left. From these statements, inspector Neogi concludes that 'they were avoiding the service of the notice'. By 'they' inspector Neogi, of course, was referring to these two persons. He could not be referring top the appellant by the word 'they'. Thereafter, inspector Neogi served the notice by affixation under orders of the Income-tax Officer. In the affidavit of Neogi there is no reference to these two persons and no reference to the alleged conversation that took place between himself and these two unnamed persons. On this state of the evidence Mr. Sen contented that the whole case of the income-tax authorities regarding service of the notice by affixation must be taken as a case based on hearsay of the worst description. The persons with whom the inspector had a conversation are not only not named but their connection with the appellant is not mentioned and what is more significant is, as Mr. Sen points, out, that in the affidavit of 22nd October, 1963, there is no mention about these two persons. The reports dated 1st October and 22nd October, 1963, standing by themselves, cannot in any case be treated as evidence. Even if the affidavit be taken as evidence the whole story about the two named relations of Ramendra Nath Ghosh does not appear there at all. Mr. Sen contends that on these materials the learned judge should not have come to the finding that the service of the notice by affixation had been done really. Indeed, Mr. Sen contends that the learned judge should not have believed the story of Inspector Neogi at all. There are some controversies also as to whether No. 2, Grand Trunk Road address was a disclosed address of the appellant. Mr. Sen sought to rely on a letter dated 10th October, 1963, alleged to have been addressed by the appellant to Income-tax Officer, 'L' Ward, Company District I, in which the appellant gives notice of discontinuance of business of Bally Pug Mill Works Private Ltd. under section 176(3) of the Income-tax Act, 1961, and also told the Income-tax Officer that the address of 2, Grand Trunk Road, Ballykhal, Howrah, was closed for the time being. There is also a statement in that letter to the following effect :
'Ex-director Ramendra Nath Ghosh, the undersigned, leaving today with the family to the following address :
C/o. Santosh Kumar,
M/s. M. G. Rungta, Barbil - Siljora,
Dist, Keonjhar, Orissa.
and will be back to Uttarpara after visiting other places, after the Kalipuja on or about 22nd November, 1963.'
The suggestion was that in spite of this notice which is really a statutory notice, the income-tax authorities deliberately sent the notice under section 33B to a wrong address. The income-tax authorities did not admit that they had received this notice and it was pointed out that this alleged letter of 10th October, 1963, was annexed to the appellants affidavit of 12th March, 1965, to which the respondents had no opportunity to reply.
Mr. Sen submitted that the question as to whether the notice had really been served by affixation as well as the question as to whether the appellants letter dated 10th October, 1963, had been received by the income-tax authorities were matters which could not be properly decided without hearing the matter on evidence. After hearing both parties we also thought it necessary in the interest of justice to decide that question by a trial on evidence. Instead of sending back the matter to the learned trial judge on remand which would only have matter to the learned trial judge on remand which would only have meant further protracted proceedings, we decided to record the evidence ourselves. Accordingly, we passed an order on 21st July, 1966, calling the following persons to come and give evidence before us as court witnesses; (i) Shri K. P. Narasingham, who was the Income-tax Officer, 'D' Ward Howrah, at the relevant time and has affirmed the affidavit dated 25th April, 1964, (ii) Shri C. R. Sen, the Income-tax Officer, 'D' Ward, Companies District IV, who had made the assessment dated 24th February, 1964, of the Bally Pug Mills Private Ltd. and, (iii) Shri H. P. Neogi, who was the inspector in the office of the Income-tax Officer, Howrah, on 27th October, 1963, and whose reports and affidavit regarding the service of notice by affixation are already on record. We made it clear that the examination of these witnesses were to be confined to the points of : (i) the alleged service of the notice by affixation on the assessee on 22nd October, 1963, and (ii) the alleged receipt of the letter dated 10th October, 1963, by the income-tax authorities. We gave an opportunity to both the parties top disclose, if they wished to do so, any further documents in respect of the evidence that was going top be recorded. Thereafter, the three witnesses named above appeared and gave evidence before us. They were first examined by Mr. Mukherjee, counsel for the respondents, and then cross-examined by Mr. Sen. It is not necessary for us to give any elaborate of these witnesses. It will sufficient if we set out the net results of this evidence.
Neogi said that when he went to serve the notice at No. 2, Grand Trunk Road, he found that the premises looked an office. He knew this office to be the office of Bally Pug Mills. He found two men there who described the appellant as a member of their family. He asked them for their names but they refused to disclose their names. He could not explain why he did not mention their refusal to disclose the names either in his report or in his affidavit. The only explanation he gave was that his report was a short one and that is why he did not mention this fact. According to Neogi he had been told by his office that No. 2 Grand Trunk Road was the residential address of Ramendra Nath Ghosh. He said that one Mr. Chowdhury, Income-tax Officer, had given him this information. Neogi did not know that the Uttarpara address was a residential address. He had only been asked to serve the notice at No. 2, Grand Trunk Road, and nothing more. The two persons whom Neogi met at the office had told him on the second day that Ramendra Nath Ghosh had left the station and would be coming after a month. He then contradicted his earlier statement and stated that he had not been told by anybody whether the premises at No. 2, Grand Trunk Road, was a residence or an office. He had only received the directions that he was to serve the notice at No. 2, Grand Trunk Road.
Chittaranjan Sen mainly gave evidence to say that there was no letter in the file of Bally Pug Mills Private Ltd. dated 10th October, 1963, and written by Ramendra Nath Ghosh.
Narasingham in his evidence stated that in the appellants return for the year 1959-60 his office address is given as No. 2 Grand Trunk Road, Ballylkhal, Howrah. In that return the residential address is 'blank'. That was also the position for the assessment years 1960-61, 1961-62 and 1962-63. In the assessment return for the year 1963-64, the office address is given in the front page as No. 2, Grand Trunk Road, Bally, Howrah, and residence is shown as 47, Banerjee Para Street, Uttarpara, Hooghly. For the year 1964-65 the office address is left blank and the residential address is shown as No. 2, Grand Trunk Road, Howrah. In the cross-examination Narasingham admits that on 12th November, 1959, he served a notice on the appellant at the address of 47, Banerjee Para Lane. He admits that 47, Banerjee Para Lane, must have been the residential address of Ramendra Nath Ghosh. He admits in the cross-examination that the return for 1963-64 shows the office address of the appellant as No. 2, Grand Trunk Road and the address of his residence as 47, Banerjee Para Street (Q. 52). The notice of 19th October was sent by registered post to Banerjee Para Road, Uttarpara. Narasingham said that he had informed the Income-tax Officer, head quarters, about the place where affixation was to be made. He did not ask them to affix at No. 2. Grand Trunk Road. Her had not given any instruction to Neogi. If anybody had asked him about the residence of the appellant Ramendra Nath Ghosh, he could have told him the address but nobody asked him. Narasingham admitted that, if a notice was to be served by affixation, it should have been served at the residence. The relevant questions and answers are so important that I set them out verbatim :
'Q. 89 : Where according to you with all fairness notice is to be served by affixation - you are a responsible Income-tax Officer - at the Officer or at the residence / At the residence.
Q. 90 : Would you serve him by affixation at the business premises / Perhaps not.
Q. 91 : If you were told that the Inspector has been informed by the people that the man has left Bally office and would not be coming within one month, would you serve it by affixation or would you ask and enquire for his residence / If I am given the work of service I may try at every place.
Q. 92 : Would you agree that in fairness, apart from the question of law, you should be at least looking for his residence / Yes, I would have.
Q. 113 : What I am asking you since a notice to be served by affixation - if it was a summons issued by a court under the Code of Civil Procedure - according to your experience and knowledge at the first instance where it has to be served - residence or the office / I think that it should be served at the residence, if possible.
Narasingham, however, stated that he had supplied the residential address to the officer concerned. This is what he said :
'Q. 98 : You did not supply the residential address to the I. T. O. Headquarters or to the Commissioners / Yes.
Q. 99 : You supplied the address / Yes I supplied the address.
Q. 100 : So you supplied the address of 47, Banerjee Para Road, to which the registered post letter to be sent They were sent to Uttarpara / I cannot tell you. The records of the Commissioner contain the address and in the affidavit also I find that the Uttarpara address of the assessee is there residential address which I have found from the records on the date of the affidavit.
Q. 101 : Apart from it you supplied the address of Uttarpara residential address - but you did not know where registered letter to be sent - is that your case / The address was given to the Commissioners office where it was utilised by them. I was not in the picture.
Q. 102 : You supplied them the address for what purpose you supplied / For all purposes under section 33B.'
Two more answers of Narasingham should be set out verbatim. -
'Q. 114 : In October, 1963, regard being had to the material which you have before you just now, where it is stated was the residence of Ramendra Nath Ghosh / In Banerjee Para Lane in Uttarpara.
Q. 117 : In this particular case, look at pages 109, 110 and 111 and tell us whether according to you attempt was made to serve the notice at the residence / From these reports I do not find that an attempt was made to serve at the residence.'
The following are the broad facts which emerges as a result of the evidence :
(i) The income-tax authorities knew that premises No. 2, Grand Trunk Road, Ballykhal, was not the petitioners residence and that it was the office of a company which had gone into liquidation;
(ii) The income-tax authorities knew that the appellant would be away for a month and there was no likelihood of his coming to No. 2, Grand Trunk Road :
(iii) The income-tax authorities knew the residential address of the appellant to be No. 47, Banerjee Para Road;
(iv) The residential address had been supplied to the authorities who were in charge of the proceedings under section 33B by Narasingham;
(v) The affixation was made at No. 2, Grand Trunk Road, without any attempt to ascertain whether the appellant was at his residence;
(vi) No attempt at all was made to serve the notice either personally or by affixation at the residence. The only attempt was made at the office address;
(vii) Ordinarily, the practice of the income-tax authorities is to serve such notices by affixation at the residential address of an assessee.
Mr. Gouri Mitter realised that his case must stand or fall with the evidence of H. P. Neogi. He could not, however, argue that Neogis evidence was completely satisfactory. So, with his usual persuasiveness Mr. Mitter asked us to accept the evidence of Neogi in spite of its short-comings on the ground that it was not inconsistent with his affidavit of October 22, 1963. We find it impossible, however, to rely on the evidence of Neogi. Neogi in his evidence says that he knew the premises at No. 2, Grand Trunk Road to be the residence of Ramendra Nath Ghosh and that this was the residential address of Ramendra Nath Ghosh and that this was there residential address of Ramendra Nath Ghose which had been given to him by his office (Qq. 90-91). Later on he had to admit that No. 2, Grand Trunk Road, was the office address of Bally Pug Mills Ltd. A question was put to him if he had been told whether No. 2, Grand Trunk Road, was the office address or the residential address. To that question his answer which is to be gathered from there questions (Qq. 104-106) seems top be this that he had only been asked to serve the notice at No. 2, Grand Trunk Road by affixation and he was not told that that was either his office address or his residential address. Thus he contradicts his earlier evidence. Narasingham in his evidence had, however, stated (in answer to question 102) that he had supplied the residential address of Ramendra Nath Ghosh to the Commissioners Office 'for all purposes under section 33B' and Narasingham of course made it quite clear that residence of Ramendra Nath Ghosh was in Banerjee Para Lane, Uttarpara, and that it was only his office that was at No. 2, Grand Trunk Road (Qq. 114-115).
In this state of the evidence on record we must say that Neogis evidence cannot be relied on.
Assuming, however, that Neogi gave correct evidence and that his affidavit is true, all that it proves is that the notice had been served by affixation at the office address of Bally Pug Mills. That would not, in our opinion, amount to giving of a reasonable opportunity to the petitioner.
Section 33B sub-section (1) of the Income-tax Act is in the following terms :
'(1) The Commissioner may call for and examine the record of any preceding under this Act and if he considers that any order passed therein by the Income-tax Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such enquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or canceling the assessment and directing a fresh assessment.'
It is clear, therefore, that 'giving the assessee an opportunity of being heard' is a condition precedent to the exercise of this special jurisdiction by the Commissioner. But what exactly is the meaning of 'an opportunity of being heard' Does it require the service of a written notice Mr. Sen contended that this opportunity could be given only by serving a written notice on the assessee and this notice is to be served either by post or as if it were a summons issued by court under the Code of Civil Procedure, 1908. Mr. Sen developed his argument in the following way. The requirement of giving an opportunity of being heard must be construed to simply an obligation of giving a notice to the assessee of the contemplated exercise of jurisdiction under section 33B by the Commissioner. Such notice must be served in the way indicated in section 63 of the Indian Income-tax Act, 1922, regarding service of notices. Sub-section (1) of section 63 deals with service of notice upon an individual and is in the following terms :
'63. (1) A notice or requisition under this Act may be served on the person therein named either by post or, as if it were a summons issued by a court, under the Code of Civil Procedure, 1908.'
Since in this case the notices could not admittedly be served on the petitioner by post, the only other way they could be served is by the procedure laid down for service of summons under the Code of Civil Procedure. There are, as is well-known, three modes of such service. In the first case, a summons is served by delivering a copy of it to the defendant personally or to his agent or his representative in which case the signature of the person to whom the copy is delivered has to be secured in a acknowledgment of the service on the original summons. Rules 13 to 16 of Order 5 of the Code of civil Procedure indicate the procedure of this mode of service. Secondly, service is sometimes effected by affixing a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain. This is the procedure usually adopted when the defendant refuses to accept service or cannot be found. The procedure is outlined in rule 17 of Order 5 of the Code. Thirdly, where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purposes of avoiding service or where the summons cannot be served in the ordinary way for any other reason, the court can order the summons to be served by affixing a copy thereof in some conspicuous place in the court house had also upon some conspicuous part of the house in which the defends it is known to have last resided or carried on business or personally worked for gain or in such other manner as the court thinks fit. This is known as substituted service and has been described in rule 20, of Order 5 of the Code of Civil Procedure. In the instant case, the income-tax authorities obviously tried to adopt the second procedure outlined above. It is necessary, therefore, top set out the provisions of Order 5, rule 17, of the Code of Civil Procedure as amended by the Calcutta High Court which are as follows :
'Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the defendant is absent from his residence at the time when service is sought to be effected on him thereat and there is no likelihood of his being found thereat within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person upon whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain and shall then return the original to the court from which it was issued with a report endorse thereon or annexed thereto stating that he has so affixed to copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.'
On the facts of this case it cannot be said that the defendant or his agent refused top sign the acknowledgment. It does not also appear that the two unnamed persons whom H. P. Neogi is supposed to have met at No. 2, Grand Trunk Road, Ballykhal, Howrah, had been asked to accept the service. Indeed, it does not appear that they were either agents or such persons as could accept the service on behalf of the assessee. In any case, since the income-tax inspector does not say that they refused to a accept the service, there has not been a strict compliance with the requirements of Order 5, rule 17 of the Code of Civil procedure. Even if all these conditions which I have just mentioned were there, all that the serving officer could do was to affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain. It is now clear beyond any question of doubt that the place where affixation had been done was not the residence of the assessee. At the relevant time one cannot even say that the assessee used to carry on business there or worked for gain there as the place in question was clearly enough the office of a company which had gone into liquidation. In the report of the serving officer there is no mention of the name and address of the person by whom the house was identified. Taking all these circumstances into consideration, it is impossible to contend that the procedure laid down in Order 5, rule 17 of the Code of civil Procedure had been followed in serving the summons.
Mr. Mitter at one stage argued that section 33B of the Income-tax Act does not expressly refer to any notice : it only speak of the Commissioner giving the assessee an opportunity of being heard. Therefore, any notice sought to be served in connection with proceedings under section 33B should not be taken as a notice under the Income-tax Act so that the provisions regarding service of notices under the Income-tax Act as contained in section 63(1) will not be attracted. Consequently, the question of complying with the requirements of Order 5, rule 17, of the Code of Civil Procedure will also disappear. All that will be necessary for the Commissioner to do would be to give a reasonable opportunity to the assessee. This argument has, however a fatal defect. The statutory notice under section 63(1) of the Income-tax Act read with Order 5, rule 17, of the Code of Civil Procedure has one advantage that even though such notice may not be served personally on the assessee there is a statutory presumption attached to such service. Once it can be satisfactorily proved that all the requirements of section 63(1) of the Income-tax Act and Order 5, rule 17, of the Code of Civil Procedure have been satisfied, there would be a statutory presumption that the service has been done properly and regularly. If, however, section 63(1) of the Act would be taken as not applicable to proceedings under section 33B of the Act, it is essential that the department must prove conclusively that the assessee did in fact have knowledge of the Commissioners proposed revision on a particular date and also of the grounds on which such revision was proposed. On the facts of the instant case it is impossible for the income-tax department to contend that the assessee must have had knowledge about the proceedings before the Commissioner. If it be argued that though section 63(1) of the Act read with Order 5, rule 17, of the Code of Civil Procedure are not directly applicable to proceedings under section 33B of the Income-tax Act, they furnish a test of reasonable notice, even then it is impossible to escape the conclusion that no reasonable opportunity had been given to the assessee. Two facts would destroy any suggestion of reasonableness, namely, the fact that notice was not affixed or sought to be served by the inspector of the income-tax department at the assessees residence in spite of the fact that the actual residence of the assessee was known to the department and, secondly, the fact that a notice was sent to and affixed at an office of a company which was already in liquidation. Though the learned judge rejected the assessees according to his Lordhship, had been avoiding the service, it is clear that neither the affidavit of H. P. Neogi nor H. P. Neogis evidence recorded before us give any support to that theory.
Emboldened by the fact that the evidence on record shows that the income-tax authorities made no attempt to serve by affixation at the residence of the assessee, though they had knowledge of the actual residential address of the assessee, Mr. Sen even tried to suggest that the department was deliberately attempting to suppress the service. Even though we are not prepared to accept this extreme argument of Mr. Sen, we find it impossible to avoid the conclusion that the assessee had not in fact been given any notice either of the proceedings under section 33B of the Income-tax Act or of the grounds on which such proceedings were sought to be initiated before the 18th November, 1963. Since the Act provides that the assessee must have a reasonable opportunity of being heard, two conditions must be satisfied : first, the assessee must be reasonable. In this case where the Commissioners order was admittedly passed on 2nd November, 1963, and the notice, as it now appears, was served on the assessee on the 18th November, 1963, it goes without saying that the petitioner did not get any opportunity at all. In Fedco (P.) Ltd. v. S. N. Bilgrami the Supreme Court held :
'There can be no invariable standard for reasonableness in such matters except that the courts conscience must be satisfied, that the person against whom an action is proposed has had a fair chance of convincing the authority who proposes to take action against him that the grounds on which the action is proposed are either non-existent or even if they exist they do not justify the proposed action. The decision of this question will necessarily depend upon the peculiar facts and circumstances of each case, including the nature of the action proposed, the grounds on which the action is proposed, the material on which the allegation are based, the attitude of the party against whom the action is proposed on showing cause against such proposed action, the nature of the plea raised by him in reply, the requests for further opportunity that may be made, his admissions by conduct or otherwise of some or all the allegation and all other matters which help the mind in coming to a fair conclusion on the question.'
In the instant case, the Commissioner passed the order on 2nd November, 1963, in the absence of the assessee without in fact having notified the assessee of his intended action. It is true that there was some urgency about this proceedings in view of the fact that the time for making an order under section 33B was due to expire very soon but even so, the last date for passing such an order was 28th November, 1963. Thereafter, the Commissioner could have be reasonably waited for some time before passing an ex parte order against the assessee.
We must take notice of another argument advanced by Mr. Gouri Mitter on behalf of the respondents. Mr. Mitter argued that since the Income-tax Act is a complete code and since there was an alternative remedy open to the assessee by way of appeal against the order of the Commissioner, no relief under the writ jurisdiction of this court would be available to the petitioner. Mr. Mitter invoked the authority of the Supreme Court and cited two decisions. In the first instance, Mr. Mitter relied on the case of C. A. Abraham v. Income-tax Officer, Kottayam, where the Supreme Court held as follows :
'The Income-tax Act provides a complete machinery for assessment of tax and imposition of penalty and for obtaining relief in respect of any improper orders passed by the income-tax authorities, and the appellant could not be permitted to abandon resort to that machinery had to invoke the jurisdiction of the High Court under article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Tribunal.'
Mr. Mitter next relied on the case of Shivram Poddar v. Income-tax Officer, Central Circle II, Calcutta, where the Supreme Court observe :
'It is however necessary once more to observe, as we did in C. A. Abrahams case, 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 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 by-pass 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.'
Mr. Mitter pointed out that in a case decided by the Bench presided over by H. K. Bose C.J. this High Court in Commissioner of Income-tax v. Kiran Debi Singhee has followed, among other decisions, the aforesaid two decisions of the Supreme Court and held that the existence of an alternative remedy should disentitle an assessee to any relief from this High Court in its writ jurisdiction. After carefully considering the arguments of Mr. Mitter we cannot persuade ourselves to accept the same. The observations of Shah J. in the two cases cited by Mr. Gouri Mitter are, in our opinion, to be read with reference to the peculiar facts and circumstances which the Supreme Court were considering in those two cases. The question as to how far the existence of an alternative remedy is a bar to an exercise of the extraordinary jurisdiction by the High Court has come up before the Supreme Court on many occasions and the Supreme Court had made it quite clear on such occasions that the mere existence of an alternative remedy does not bar the jurisdiction of the High Court to issue the writs or grant reliefs to petitioners in their writ jurisdiction. Thus, in the State of U. P. v. Mohammed Nooh, Das C.J. considered this point and formulated the principles which should be followed in the matter of issue of writs where there are alternative remedies. Das C.J. observed as follows :
'...... it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie though a right of appeal has been conferred by statute, (Halsburys laws of England, 3rd edn., Vol. 11, p. 130 and the cases cited there). The fact that the aggrieved party had another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of the statutory remedies before the writ will be granted is a rule of policy, the statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instance are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. In King v. Postmaster-General : Ex parte Carmichael, a certiorari was issued although the aggrieved party had an alternative remedy by way of appeal. It has been held that the superior court will readily issue a certiorari in a case where there has been a denial of natural justice before a court of summary jurisdiction. The case of Rex v. Wandsworth Justices : Ex parte Read is an authority in point. In that case a man had been convicted in a court of summary jurisdiction without giving him an opportunity of being heard. It was held that his remedy was not by a case stated or by an appeal before the quarter sessions but by application to the High Court for an order of certiorari to remove and quash the conviction.'
His Lordship cites with approval the case of Khurshed Modi v. Rent Controller, Bombay and Assistant Collector of Customs v. Soorajmull Nagarmull and goes on to observe :
'On the authorities referred to above it appears to us that there may conceivably be cases - and the instant case is in point - where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all a accepted rules of procedure and which offends the superior courts sense of fair play the superior court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court or tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned. This would be so all the more if the tribunals holding the original trial and the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occasinally come to our notice. The superior court will ordinarily decline to interfere by issuing certiorari and all we say is that in a proper case of the kind mentioned above it has the power to do so and may and should exercise it. We say no more than that.'
The Supreme Court had consistently followed this principle and in cases where they have found that a tribunal had acted contrary to the principles of natural justice, the Supreme Court has always unhesitatingly set as side the order passed by such tribunal. In the case of Mahadayal Premchandra v. Commercial Tax Officer, Calcutta the Supreme Court, after finding that the procedure adopted was contrary to the principles of natural justice and 'unfair and... calculated to undermine the confidence of the public in the impartial and fair administration of the sales tax department concerned', intervened and set aside an order of assessment made by the sales tax authorities. In the case of Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District I, Calcutta, which was a case where the court has to decide if the Income-tax Officer had jurisdiction to issue notices under section 34 of the Income-tax Act, the point was taken that the assessee company could raise the same point in appeal before the appellate officer or the Appellate Tribunal or in the High Court under section 66(2) of the Income-tax Act and the Supreme Court held :
'The existence of such alternative remedy is not however always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction from continuing such action.
In the present case the company contends that the conditions precedent for the assumption of jurisdiction under section 34 were not satisfied and came to the court at the earliest opportunity. There is nothing in its conduct which would justify the refusal of proper relief under article 226. When the Constitution confers on the High Courts the power to give relief it becomes the duty of the courts to give such relief in fit cases and the courts would be failing to perform their duty if relief is refused without adequate reasons. In the present case we can find no reason for which relief should be refused.'
We have no manner of doubt at all that, as a result of a long series of decisions, the principle is now quite well-settled that, in spite of the existence of alternative remedies, writs will always issue wherever a tribunal seeks to act in excess of its jurisdiction and wherever there has been violation of the rules of natural justice. We do not think that Mr. Justice Shah in the two Supreme Court decisions referred to by Mr. Gouri Mitter wanted to overrule these well-known principles which the Supreme Court itself has formulated and has also followed on numerous occasions.
Mr. Gouri Mitter was not, of course, slow in appreciating the force of the other Supreme Court decisions against his contention. He tried to go round these obstacles by pointing out that Shah J. in his judgment in Shivram Poddar v. Income-tax Officer, Central Circle II, Calcutta, has himself mentioned two exceptions where writs may be permitted, namely, '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'. Mr. Mitter sought to argue that the exceptions mentioned by Shah J. do not include the cases where rules of natural justice have been infringed and, therefore, the third exception should be taken as automatically ruled out by the judgment of Shah J. We do not read Shah J. wanted to abrogate the principles laid down in the case of State of U. P. v. Mohammed Nooh, which was a judgment delivered by a Bench presided over by S. R. Das C.J. and consisting of five judges one of whom was Sarker J., who was also a party to Shah J.s judgment in Shivram Poddar v. Income-tax Officer, Central Circle II, Calcutta. We have no doubt in our mind that the exceptions indicated by Shah J. are only illustrative and not exhaustive. In any event, contravention of the rules of natural justice or failure to give a reasonable opportunity of being heard provided for by the statute creating a special jurisdiction for an executive authority would automatically mean that the executive authority in question would have no jurisdiction to act. Therefore, on the facts of this case, where we have come to a finding that the Commissioner of Income-tax had not given a reasonable opportunity of being heard to the petitioner, we must hold that the Commissioner had acted without jurisdiction and this is a fit case where a writ or appropriate order must issue to give relief to the petitioner. On this view of the matter, even the two exceptions mentioned in Shah J.s judgment would leave enough room for the issue of such a writ.
In the result, we hold that the learned judge was wrong in dismissing the petitioners application. We, therefore, order as follows : The appeal is allowed. The judgment and order of Banerjee J. dated 19th November, 1965, are set aside. There will be a writ in the nature of certiorari quashing the order as well as the entire proceedings relating to the order dated 2nd November, 1963. There will also be a writ in the nature of mandamus in terms of prayer (b) of the petition. Each party will pay and bear its own costs throughout the proceedings.
SINHA C.J. - I agree.