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TMI Blog1961 (7) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... stated in the petition that as soon as the notice was issued a writ petition was filed in this court on 5th August, 1959, which came up for preliminary hearing before Dulat and R.P. Khosla JJ. who dismissed it on 6th August, 1959, on the ground that it was premature. The petitioner, however, states that the learned judges, while so dismissing the petition, expressed the view that the objections raised in that petition should first be raised by the petitioner before the Income-tax Officer and the petitioner should obtain a decision on the preliminary question of jurisdiction from him and, if he went against the petitioner, then the petitioner should approach this court. I may here notice the objection raised on behalf of the respondents that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d)the income of the petitioner's business is exempt under the substantive part of clause (i) in spite of non-fulfilment of the conditions stated in the proviso thereto ; and (e)no notice could be issued to the trust as such. Without giving any decision on the objections raised, the respondent, according to the petitioner, insisted upon the filing of the return by the petitioner. On 20th February, 1960, the authorised representative again invited the respondent's attention to the preliminary objections raised, but the respondent has replied that when the petitioner had earlier been called upon to file its return immediately, the objections raised were to be considered to have been obviously overruled. The pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-circuit the prescribed procedure, is incompetent and must therefore be dismissed as such. He has drawn my attention, to begin with, to C. A. Abraham v. Income-tax Officer, Kottayam [1961] 41 ITR 425 ; [1961] 2 SCR 765, a decision by the Supreme Court given in November, 1960. In the head note it is stated that the Income-tax Act provides a complete machinery for assessment of tax and imposition of penalty and for obtaining relief in respect of any improper orders passed by the income-tax . authorities. The taxpayer cannot be permitted to abandon resort to that machinery and to invoke the jurisdiction of the High Court under article 226 of the Constitution when he has adequate remedy open to him by way of an appeal to the Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om a citizen by using coercive machinery, but generally speaking there should be a clear-cut case of lack of jurisdiction or of a gross violation of mandatory provisions of law and the interests of justice should call for interference. Merely because it is alleged that ultimately assessment is likely to be contrary to law, this court would be disinclined on such allegation alone to by pass the usual machinery provided by the legislature and to proceed itself to investigate into the merits of the controversy. In view of the position just stated it is difficult to say as a matter of law that the present writ petition is incompetent and should not, therefore, be entertained and must be thrown out without hearing the petitioner. On the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applied or accumulated for application to such religious or charitable purposes as relate to anything done within the taxable territories, and in the case of property so held in part only for such purposes, the income applied or finally set apart for application thereto: Provided that such income shall be included in the total income-... (b) in the case of income derived from business carried on on behalf of a religious or charitable institution, unless the income is applied wholly for the purposes of the institution and either- (i)the business is carried on in the course of the actual carrying out of a primary purpose of the institution, or (ii)the work in connection with the business is mainly c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servations of Lord Macnaghten in Mayer c. of Manchester v. Me Adam [1896] AC 500; 3 Tax Cas. 491, quoted in Commissioner of Income-tax v. Radhaswami Satsang Sabha [1954] 25 ITR 472 . On behalf of the respondent, however, reference has been made to paragraph 11 of the written statement which states that it is not possible to give any decision on the objections raised by the petitioner unless and until the notice under section 22(2) is complied with and the case is examined fully with reference to the account books and the terms of the trust deed. In paragraph 13 also the respondent has in unequivocal terms stated that it is incorrect to say that objections raised by the assessee were obviously overruled. With reference to the letter referr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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