2004 (4) TMI 48 - HC - Income Tax

Tax Recovery Officer not considered the statement on oath already on record and passed the impugned order without giving any hearing at all - Tax Recovery Officer should have served a notice of hearing to the petitioner expressing an intention to proceed with the matter in terms of the appeal court s judgment and order and that was not done. Without complying with the direction and the order of the appeal court, the impugned order has been passed. Therefore, petitioner should be protected by the interim order but such interim order shall not be passed unconditionally having regard to the past conduct of the writ petitioner with regard to the merits and the proceedings of this matter

Issues Involved:
1. Jurisdiction of the High Court
2. Maintainability of the writ petition due to the existence of an alternative remedy
3. Compliance with the principles of natural justice by the Tax Recovery Officer
4. Requirement of filing a statement on oath under Section 226(3)(vi) of the Income-tax Act

Detailed Analysis:

1. Jurisdiction of the High Court:
The primary issue was whether the High Court of Calcutta had jurisdiction to entertain the writ petition. The learned Additional Solicitor General argued that the Tax Recovery Officer did not have his place of business within the territorial limits of the Calcutta High Court, as the impugned order was passed and communicated in Delhi. However, the petitioner contended that the notices under Section 226(3) of the Income-tax Act were served within the territorial limits of this court, and the order was necessitated by the direction of the Division Bench of this court. The court held that jurisdiction under Article 226(2) of the Constitution is not solely dependent on the place of business of the respondents but also on where the cause of action, wholly or in part, arises. The court found that the petitioner had made a prima facie case of jurisdictional fact, as the impugned notices were served within its territorial limits and the order was passed in terms of the court's direction.

2. Maintainability of the Writ Petition:
The learned Additional Solicitor General argued that the writ petition was not maintainable due to the existence of an alternative remedy by way of revision. However, the court noted that the existence of an alternative remedy is not an absolute bar to the maintainability of a writ petition, especially in cases of breach of natural justice or fundamental rights. The petitioner argued that the Tax Recovery Officer had passed the impugned order without giving any hearing or opportunity, in violation of the principles of natural justice and the court's previous judgment. The court agreed with the petitioner, emphasizing that the Tax Recovery Officer had not complied with the direction to give a hearing, making the writ petition maintainable.

3. Compliance with Principles of Natural Justice:
The petitioner argued that the Tax Recovery Officer had failed to give any notice of hearing or opportunity to file a statement on oath, as required under Section 226(3)(vi) of the Income-tax Act, thereby violating the principles of natural justice. The court found that the Tax Recovery Officer had not served any notice for a hearing and had passed the impugned order without giving the petitioner an opportunity to be heard. The court held that the Tax Recovery Officer should have considered the statement on oath already on record and should have given a notice of hearing in compliance with the appeal court's judgment.

4. Requirement of Filing a Statement on Oath:
The learned Additional Solicitor General contended that no statement of objection on oath had been filed by the petitioner, and a letter from the petitioner's advocate could not substitute for such a statement. The court, however, noted that the appeal court had already found that a statement on oath had been filed, and the Tax Recovery Officer should have considered it. The court held that no further statement on oath was required to be filed, as the existing one was sufficient. The Tax Recovery Officer was directed to give at least 48 hours' notice of hearing to the petitioner and to proceed in accordance with the appeal court's judgment.

Conclusion:
The High Court of Calcutta held that it had jurisdiction to entertain the writ petition based on the cause of action arising within its territorial limits. The writ petition was maintainable despite the existence of an alternative remedy due to the breach of natural justice. The court found that the Tax Recovery Officer had failed to comply with the principles of natural justice by not giving a hearing and not considering the statement on oath already on record. The court directed the Tax Recovery Officer to give notice of hearing to the petitioner and to proceed in accordance with the appeal court's judgment. The operation of the impugned order was stayed, and the matter was to be heard on affidavits.

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