1967 (3) TMI 32 - HC - Income Tax

Reasonable opportunity of being heard - section 33B - natural justice - CIT had not given a reasonable opportunity of being heard to the petitioner, therefore, 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

Issues Involved:
1. Reasonable opportunity of being heard under Section 33B of the Income-tax Act, 1922.
2. Proper service of notice under Section 33B.
3. Validity of service by affixation.
4. Availability of alternative remedy and writ jurisdiction.

Detailed Analysis:

1. Reasonable Opportunity of Being Heard:
The primary issue was whether the appellant was given a reasonable opportunity of being heard before the Commissioner of Income-tax exercised his powers under Section 33B of the Income-tax Act, 1922. The court found that the Commissioner failed to provide such an opportunity. The notice for the hearing scheduled on November 2, 1963, was served on the appellant only on November 18, 1963, long after the ex parte order was passed. The court emphasized that "giving the assessee an opportunity of being heard" is a condition precedent to the exercise of jurisdiction under Section 33B. The court held that the appellant did not get any opportunity at all, let alone a reasonable one, thus violating the principles of natural justice.

2. Proper Service of Notice:
The court scrutinized the service of notice under Section 33B and found significant discrepancies. The notice dated October 19, 1963, was sent by registered post to multiple addresses but was not received by the appellant until November 18, 1963. The court noted that the income-tax authorities and postal authorities admitted that the letters were delivered on November 18, 1963, and not on November 22, 1963, as initially claimed. The court concluded that the notice was not served in a timely manner, thereby invalidating the proceedings.

3. Validity of Service by Affixation:
The court examined the service by affixation at No. 2, Grand Trunk Road, Ballykhal, Howrah, and found it to be improper. The Inspector's reports and affidavit were deemed unreliable. The court noted that the premises were the office of a company in liquidation, not the appellant's residence. The court found that no attempt was made to serve the notice at the appellant's known residential address, which was a clear procedural lapse. The court stated that even if the Inspector's affidavit were true, affixation at the office address would not amount to giving a reasonable opportunity to the appellant.

4. Availability of Alternative Remedy and Writ Jurisdiction:
The respondents argued that the appellant had an alternative remedy by way of appeal and thus should not be granted relief under writ jurisdiction. The court rejected this argument, citing Supreme Court precedents that the existence of an alternative remedy does not bar the High Court's jurisdiction to issue writs, especially when there is a violation of natural justice or when a tribunal acts without jurisdiction. The court held that the Commissioner acted without jurisdiction by not providing a reasonable opportunity to the appellant, making it a fit case for issuing a writ.

Conclusion:
The court allowed the appeal, set aside the judgment and order of the lower court, and quashed the order and proceedings dated November 2, 1963. The court issued a writ of certiorari and mandamus, directing the respondents to provide a reasonable opportunity of being heard to the appellant. Each party was ordered to bear its own costs.

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