9911796707
TMI Blog1952 (8) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... three in number and they are: 1. The Income Tax Commissioner, Bangalore; 2. The Asst. Appellate Commissioner, Trivandrum and 3. The Second Addl. Income Tax Officer, Trivandrum Circle. There was an assessment made on the Petitioner by the third Respondent for the year 1122. The order of assessment is dated 14-8-1951. An amount of ₹ 89,020/- has been regarded by the officer as income of the Assessee derived under the heading Other sources . The relevant Act applicable to the case is the Travancore Income Tax Act, 23 of 1121. Sections 3, 4 and 9 provide for the assessment of income. The Assessee's case before the officer was that though this amount had been received by him, it was exempt from assessment to tax under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Tax in the hands of Mr. Menon. Against this order of assessment, the Petitioner filed an appeal before the 2nd Respondent on 3-9-1951. That appeal was posted for hearing to 3-10-1951 on which date the Petitioner applied for and obtained an adjournment. Two days thereafter that is on 5-10-1951 the Petitioner filed the present application before this Court for the aforesaid reliefs. Though the Petitioner does not make mention of the appeal in his affidavit, a paper called, statement of facts which accompanied the application and affidavit, the fact of the appeal having been filed and of its pendency is made mention of. The main ground on which relief is sought in this Court is that the order of assessment has omitted to decide the onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal having been preferred against it and that there not being a final order to be quashed, the writ for certiorari will not lie. 3. Learned Counsel for the Petitioner contends that the petition before this Court is maintainable because the ground on which relief is sought in this Court is that on the face of the order of assessment there is a defect in that, a decision upon a particular point which was essential for the officer exercising the jurisdiction has not been rendered by that officer and that in the absence of such a decision, it would be beyond the competence and jurisdiction of the officer to levy the tax. As regards the second preliminary objection his answer is that concurrent remedies could be pursued concurrently. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not a defect in the order of assessment such as to regard it as containing an error apparent on the face of the record which would be a ground for the interference of the High Court in certiorari. Learned Counsel for the Petitioner argued that the Travancore Income Tax Act 23 of 1121 under which the assessment purports to have been made was not in force at the time when the order of assessment was passed. Reliance was placed upon Section 13 of the Adaptation of Laws Order 1950 for this purpose. Objection is taken by the learned Counsel for the 3rd Respondent in that such a point is not raised by the Petitioner in the papers produced along with the petition, either in the petition itself, or in the affidavit, or in the statement of fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even before that authority he does not get complete redress and if a question of law arises, then he is given the further opportunity of having that question brought up before the High Court for opinion and the final decision will be in accordance with the opinion of the High Court. It is therefore clear that the Petitioner gets an opportunity for getting complete efficient and effective redress in the matter of his complaint, that is made by him in this petition. When such a machinery is provided and when there is no illegality or fatal irregularity in the pursuit of the procedure provided by the Act or a usurpation or excessive exercise of jurisdiction, then a resort to the High Court for relief in exercise of the extra-ordinary jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the jurisdiction of the Surveyor, and if there is exception taken to the additional first assessment which he had accordingly made, there is a clear right of appeal under the Act, and that right of appeal is at this present moment being pursued by the applicant in this case. I think, therefore, that the application for the writ of Prohibition manifestly fails. So here. 6. Learned Counsel for the Petitioner at the conclusion of the argument placed before the court a decision in -'Rekhi U.C. v. Income Tax Officer 1st F Ward New Delhi' AIR 1951 P H 1 (C) which has taken the view which I have taken in this judgment as regards the maintainability of an application for a writ in a matter of Income Tax under similar circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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