1963 (9) TMI 77 - HC - Income Tax

Summary

Issues Involved:
1. Whether the order of the Commissioner of Income Tax under Section 33A of the Income Tax Act is administrative or quasi-judicial.
2. Whether the High Court has jurisdiction to issue a writ of certiorari to quash the order of the Commissioner under Section 33A.
3. Whether the Commissioner's order on merits is liable to be quashed for error of law apparent on the face of the record.

Issue-wise Detailed Analysis:

1. Nature of the Order under Section 33A:
The primary issue in this case is whether the order passed by the Commissioner of Income Tax under Section 33A is administrative or quasi-judicial. The court examined the historical context and legislative intent behind Section 33A, noting that it corresponds to the old Section 33 of the Income Tax Act. The court referred to the Privy Council's decision in the Tribune Trust case, which held that Section 33 provided administrative machinery for a higher executive officer to review the acts of subordinates. The court concluded that both Sub-sections (1) and (2) of Section 33A are administrative in nature, as they do not confer any right on the assessee and do not require the Commissioner to act judicially. The court emphasized that the Commissioner's power under Section 33A is one of superintendence and correction, not adjudication.

2. Jurisdiction to Issue Writ of Certiorari:
The court addressed whether the High Court could issue a writ of certiorari to quash the Commissioner's order under Section 33A. It relied on several precedents, including the Privy Council's decision in the Tribune Trust case and various High Court decisions, which consistently held that orders under Section 33A are administrative and not subject to judicial review via certiorari. The court also considered the Supreme Court's decision in Kushaldas S. Advani, which laid down principles for determining whether an act is quasi-judicial or administrative. Applying these principles, the court found that the Commissioner's order under Section 33A does not involve a lis inter partes or require the Commissioner to act judicially. Therefore, the High Court lacks jurisdiction to issue a writ of certiorari in this context.

3. Merits of the Commissioner's Order:
The appellant argued that the Commissioner's order was erroneous on its face because it assessed the income at Rs. 1,75,000 despite the gross income from brokerage being Rs. 1,18,000. The court examined the Commissioner's reasoning and found no inherent impossibility or absurdity in the assessment. The court noted that the Commissioner considered all relevant facts and did not ignore the books of account, even though he stated they could not be the sole basis for an ex parte assessment. The court concluded that there was no error of law apparent on the face of the record that would justify quashing the Commissioner's order. The court also rejected the appellant's argument that the Commissioner should have computed the income on fresh materials, noting that the Commissioner's role is not to re-assess but to review.

Conclusion:
The court dismissed the appeal, holding that the order of the Commissioner under Section 33A is administrative and not subject to judicial review via certiorari. The court also found no merit in the appellant's arguments regarding the assessment's correctness. The appeal was dismissed with costs, and the decision was certified for two counsel.