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TMI Blog1971 (3) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... emand in respect of the same. It appears that Dhaniram Gupta was a partner of the firm of Dhaniram Gupta Co. This application is in respect of the individual assessment of Dhaniram Gupta. There are certain allied applications which I shall dispose of by separate judgments hereinafter in respect of the firm. Some confusion has been created by inter-relating the facts of these two assessments. However, it will be necessary to refer briefly to the facts. It appears that Messrs. S. K. Sawday Co., a firm dealing in tax matters, was acting for Dhaniram Gupta at the initial stages of assessment and of this application. Thereafter, there was a change. On the 28th June, 1965, the petitioner individually filed a return of income through Messrs. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner. One of the groands urged in respect of this petition was that the notices had not been served. I will deal with that question later. Thereafter, on the 20th January, 1970, the petitioner's case was fixed for hearing and adjournment was granted till 11th February, 1970. According to the petitioner between the affidavit of the Income-tax Officer and the assessment order, there was contradiction about the circumstances under which the adjournment was granted till 11th February, 1970. It is, however, not necessary to advert to that controversy in detail. It appears that Dhaniram Gupta attended the assessment proceedings at one, stage on the 11th February ; it would therefore, be proper to rely on what is stated in the assessment ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpliance, because by the said notice evidence and explanations were required to be produced, while the books and documents and papers from which such evidence and explanations could be given, were under the custody of the income-tax department. Therefore, it was urged that it was impossible to comply with such notice. It was further urged that in any event it was unreasonable to require compliance with such notice. I am, however, unable to accept either of these contentions. The notice required certain explanations. It is true that the books and documents had been seized and were in the custody of the income-tax department, but under section 132(9) of the said Act the petitioner could have obtained copies of the same. The petitioner did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impossible to comply with the notice or it was unreasonable to ask compliance with the notice. Counsel for the petitioner urged that there has been no approval of the Commissioner beyond the period of 180 days for the retention of the seized documents. It was, therefore, urged that the retention was illegal. Reliance was placed on the decision in the case of Mahabir Prosad Podday v. Commissioner of Income-tax. In this application, however, I am not concerned either with the question whether the seizure was valid or whether retention of the documents beyond the period of 180 days was valid or not. That is not the point taken in this petition. Therefore, I do not propose to enter into that controversy in this case. The main reason, howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of England, 3rd edition, volume 11, page 132, to the decision in the case of Bhika Mal Musaddi Lal v. Commissioner of Sales Tax, State of U. P. v. Mohammad Nooh and State of Kerala v. Markose, in support of the proposition that the disputed questions of fact can also be investigated by the court in an application under article 226 of the Constitution. Counsel for the petitioner also drew my attention to the decision of the Supreme Court in the case of Smt. Gunwant Kaur v. Municipal Committee, Bhatinda. It has, however, been held by a Special Bench of this court in the case of Sheo Nath Singh v. Appellate Assistant Commissioner of Income-tax, that where the assessee was actively pursuing an alternative remedy, the assessee was not entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceed with the alternative remedy. Indeed, the petitioner cannot abandon the alternative remedy resorted to because under the scheme of the Income-tax Act an appeal against assessment once preferred by an assessee cannot be withdrawn. In that view of the matter in order to avoid the possible conflict of decisions this court would hesitate to entertain an application, like this under article 226 of the Constitution. There is, however, an added reason why this court should not entertain the application. Here, the ground is the alleged violation of the principles of natural justice but the violations which have been alleged are of such nature that they have to be established by adjudication of disputed questions of fact, that is to say, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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