1969 (7) TMI 5 - SC - Income Tax

Service of notice - reopening the assessment u/s. 33B - High Court has found after an examination of the evidence of the case that the appellant was given an opportunity of being heard - Assessee s appeal is dismissed

Summary

Issues:
1. Jurisdiction of High Court under article 226 of the Constitution versus alternative remedy of appeal under section 33B of the Income-tax Act.
2. Adequacy of opportunity given to the appellant before the order under section 33B of the Act was made.
3. Validity of service of notice under section 33B and applicability of civil procedure rules.

Analysis:

The judgment revolves around the appellant's appeal regarding the cancellation of assessment orders under the Income-tax Act, 1922. The primary issue raised is whether the appellant was entitled to invoke the special jurisdiction of the High Court under article 226 of the Constitution or if an appeal under section 33B of the Act would have been more appropriate. The court emphasized that when an alternative and equally efficacious remedy is available, the litigant should pursue that remedy rather than seek a writ. The court cited previous cases to highlight that the High Court's extraordinary jurisdiction should be reserved for cases involving fundamental rights or jurisdictional errors by taxing authorities.

Regarding the adequacy of the opportunity given to the appellant, the court found that the appellant had been provided with a chance to be heard before the order under section 33B was made. The appellant's claim of not being aware of the notice was contradicted by evidence showing that notices were sent to her address and attempts were made for personal service. The High Court concluded that the appellant had refused to accept the notice, indicating that she was aware of the proceedings, thus fulfilling the requirement of providing an opportunity to be heard.

The judgment also delved into the validity of the service of notice under section 33B and the applicability of civil procedure rules. While the appellant argued that the service of notice by affixing did not strictly adhere to civil procedure rules, the court clarified that section 33B did not explicitly require such strict notice procedures as in other sections of the Act. The High Court's examination of the evidence led to the conclusion that the appellant had indeed been given an opportunity to be heard before the order was issued, thereby upholding the validity of the service of notice under section 33B.

In conclusion, the court dismissed the appeal, affirming that the appellant was not entitled to any relief. The judgment highlighted the importance of exhausting alternative remedies before seeking extraordinary jurisdiction and emphasized the necessity of providing adequate opportunities for the parties involved in tax assessment proceedings.