9911796707
TMI Blog1956 (11) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... cer, Ajmer, in connection with the assessment year 1945-46, apparently on the ground that certain income had escaped assessment. The applicant appeared before the Income-tax Officer, and objected to the jurisdiction of the Income-tax Officer to assess him under that section. The case came for disposal to the VII Additional Income-tax Officer, Ajmer, stationed at Udaipur, and that officer ordered levy of tax amounting to ₹ 2,92,665-5-0 on the applicant by an order of March, 1955. The applicant has preferred an appeal against that order, and the appeal is pending before the Appellate Assistant Commissioner of Income-tax. The applicant wanted stay of realisation of tax from him. That stay has, however, not been secured by him. Later a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It has provided appeals against orders of taxing authorities, first to the Appellate Assistant Commissioner, and then to the Appellate Tribunal. It has also provided for reference of questions of law to this court by the Appellate Tribunal. It has also given powers to this court to order the Appellate Tribunal to refer any question of law in case the Appellate Tribunal has refused to do so on an application made by the assessee. The main point involved in this case is a question of law, namely, whether, on the law as it stands, the Income-tax Officers concerned had the jurisdiction to issue notice to the applicant under section 34 and to assess him. The applicant has already field an appeal to the relevant authority against the order of as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess." Prohibition lies to correct an assumption of jurisdiction by a Tribunal which has not got jurisdiction, and has to be applied for before the Tribunal decides the matter. It would have been a different matter if the applicant had come to us as soon as the Income-tax Officer issued notice to him questioning the jurisdiction of that officer. But after the Income-tax Officer has decided the matter and levied a tax on the applicant, there is no question now of prohibiting him from exceeding his jurisdiction. If his order is without jurisdiction, he has already exceeded it, and there can only be the issue of a writ of certiorari, if the order is in excess of jurisdiction. A writ of certiorari is always a discretionary writ, and in a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e an appeal could be preferred, that is not an alternative remedy which is adequate." Assuming this view of the law to be correct (though we should like to reserve our final opinion on it), the applicant does not stand to gain anything by our deciding merely the question of penalty. The penalty has been imposed because the tax has not been paid. Whether the tax has been properly levied is a question which is under appeal. Any order under section 46(1) would fail if it is held that the tax is not properly levied. Therefore, the main question which has to be decided is whether the applicant has been properly assessed on a notice under section 34(1), and that question is before the proper appellate authority. We have held that that quest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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