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TMI Blog1987 (5) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer including that the claim did not satisfy the requisite conditions of section 36(1)(ii) of the Income-tax Act, 1961 ('the Act'). One such ground for disallowance of the petitioner's claim was that the payments representing incentive bonus were not genuine and it was bogus claim. The findings recorded in this regard were that relevant entries, instead of being made in the wage registers, were recorded on a separate sheet. The payments were received against thumb impressions. In a large number of cases, the thumb impressions were identical or similar. In the first appeal, these findings were sustained. During the hearing of that appeal, the Assessing Officer was required to submit a remand report. It appears that during remand proceedings, an expert's opinion on the genuineness of the thumb impressions Was called for. The doubts of the Assessing Officer that in most of the cases the thumb impressions were identical or similar was supported by the said report. The Commissioner (Appeals), after having discussed the remand report and other grounds of disallowance, confirmed the action of the Assessing Officer. As regards the genuineness of the claim, he held as under : "On the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceive incentive bonus on their behalf while 1980-81 was a normal year and there was no strike. It was claimed that to this extent the facts of assessment year 1981-82 are not exactly similar to the facts of assessment year 1980-81. The stand of the petitioner before the Assessing Officer, however, was that the facts in the two years were exactly similar and there was no difference in the two years. On a perusal of the expert's opinion, the Commissioner (Appeals) found that on one date, 15 to 20 thumb impressions were said to be alike. The petitioner's representative expressed his inability to Me detailed information without taking photo enlargements of the thumb impressions. In this view of the matter and for other reasons stated in his order he set aside the assessment for the investigation. He directed that while looking into the genuineness of payment, if the Inspecting Assistant Commissioner decides to get the thumb impressions examined, he should not stop in the middle but should get them examined by photo enlargement also. The assessee should be given opportunity to explain before any material is used against him. The Commissioner also gave some more directions regarding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n given earlier if some new facts are brought on record or if the earlier decision was rendered on incomplete or half-baked facts. We cannot say that the course adopted by the Commissioner (Appeals) in setting aside the assessment was unreasonable when he did not allow the mistake committed by the Revenue earlier to perpetuate in not obtaining a proper expert's opinion. Time and again, it has been stressed that the High Court should not ordinarily interfere with the order of the tax authorities under article 226 of the Constitution and should relegate the parties before the hierarchy of authorities provided under the Act to vindicate their grievances. This is, of course, subject to certain exceptions, such as that the order complained of suffers from inherent lack of jurisdiction or that it has been made in violation of the principles of natural justice or is patently absurd on its face. In Shivram Poddar v. ITO [1964] 51 ITR 823, the Supreme Court held (at page 829) "The Income-tax Act provides a complete machinery for assessment of tax, and for relief in respect of improper or erroneous orders made by the revenue authorities. It is for the revenue authorities to ascertain t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he vindication of public justice require it that recourse may be had to article 226 of the Constitution. But then the court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. . . In Dinesh Prasad v. State of Bihar, AIR 1986 Patna 112, a Full Bench of the Patna High Court, after an exhaustive discussion and reviewing several authorities of the Supreme Court, held (at page 121) : "Therefore, the salutary rule is that the writ court would entertain the matter only if adequate and efficacious remedies have been first resorted to and exhausted. The failure to observe that rule can only be at the peril of crushing the extraordinary jurisdiction itself and ultimately rendering it inefficacious, because it is, and was, never intended, to replace or substitute the ordinary legal remedies expressly provided by the Legislature. Therefore, on principle itself, resort to the extraordinary jurisdiction is permissible only after resorting to the alternative remedy where available.... Unless the extraordinary remedy of the writ jurisdiction is to be hamstrun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the disputed income from the property in that case was assessable under the head "Profits and gains of business or profession". The Income-tax Officer followed the decision of the Tribunal in framing the assessment for three subsequent years. The Commissioner, being of the opinion that these assessments were erroneous took proceedings under section 263 which were challenged by means of a writ petition before the High Court. The High Court quashed those proceedings. It took the view that the assessment order could not be held to be erroneous when it followed the decision of the Tribunal being a decision of a superior authority. The said decision, in our opinion, has no application to the facts of the present case which is clearly distinguishable. There was no dispute on the facts in the case before the Calcutta High Court and the question was decided by the Tribunal on admitted facts as an abstract question of law. The correct facts in the instant case are yet to be determined and the matter was remanded for this purpose only by the Commissioner (Appeals). For what has been stated above, we hold that it is not a fit case where we should interfere under article 226. The writ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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