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TMI Blog1971 (3) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... le 226 of the Constitution - - - - - Dated:- 18-3-1971 - Judge(s) : SABYASACHI MUKHERJEE. JUDGMENT This application under article 226 of the Constitution challenges the assessment order under section 144 of the Income-tax Act, 1961, in respect of the firm, Dhaniram Gupta Co., for the assessment year 1965-66. The main ground urged in this application was that documents have been seized by the income-tax department under section 132 of the Income-tax Act, 1961, and, as such, it was not possible to comply with the notice under sections 142(1) and 143(2) of the Income-tax Act, 1961. I am unable to accept this contention. It has to be further noted that the order under section 132 has not been challenged in this application. Merely bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s urged that Dhaniram Gupta was the partner who was looking after the affairs of the firm and as he was undergoing an eye operation, it was not possible to comply with the notice under sections 142 and 143 of the Income-tax Act, 1961. Yet, when Shri Dhaniram Gupta filed the appeal, the petitioner has sought to contend that the said appeal was preferred without authority of the petitioner. This betrays an inconsistency of approach. An appeal against assessment, once preferred, cannot however be withdrawn. Reliance may be placed for the proposition on the decision of the Supreme Court in the case of Commissioner of Income-tax v. Rai Bahadur Hardutroy Motilal Chamaria, where the Supreme Court has observed that an assessee having once filed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. Mr. S.R. Banerjee drew my attention to the decision in the case of Baburam Prakash Chandra Maheswari v. Zilia Parishad, Mizaffarnagar, where the Supreme Court has held that in cases of infringement of fundamental rights and violation of principle of natural justice the existence of alternative remedy would be no bar. Mr. Banerjee further argued that in this case the assessment order was violative of the principles of natural justice because the Income-tax Officer had relied on various grounds without intimating to the petitioner the same. Mr. Banerjee contended that reliance was made on conjectures and surmises and the order was not fair. I am, however, unable to accept this contention. In an order under section 144 of the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ept this contention. Mr. Banerjee's client has proceeded under a misconception. Registration for the previous year was cancelled by an order under section 186 on the 18th March, 1967, and this assessment order was passed on the 18th March, 1970. It has been recorded that the assessee did not file an application for registration for this assessment year. The petitioner disputes that. That is a disputed question of fact. It can better be agitated in an appeal. Furthermore, appeal has also been preferred from the previous year's orders cancelling the registration. Taking into consideration all the facts and circumstances of the case, it appears that not only the petitioner had an alternative remedy but the said remedy was more adequate in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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