9911796707
TMI Blog1980 (4) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... e was no dispute about the assessment. On March 31, 1967, Dharam Pal, petitioner, made a partial partition amongst the members of his family with respect to the investment of the HUF headed by him in the firm of M/s. Nagesh Hosiery Mills and his share of income from each investment was also partitioned with the other petitioners in Civil Writ Petition No. 6792 of 1976 with the overriding share of Dharam Pal from the said concern of M/s. Nagesh Hosiery Mills. Similarly, Vidya Parkash, on March 31, 1967, made a partial partition with the members of his family constituting all the petitioners in Civil Writ Petition No. 6793 of 1976 on the same terms and conditions as in the case of Dharam Pal. The partition deed has been annexed as annex. P-1 in both these petitions. The petitioners in both these cases filed returns for the assessment year 1968-69 in their individual names for their respective shares from the said firm of M/s. Nagesh Hosiery Mills. In CWP No. 6792 of 1976, the share of each petitioner came to 1/6th of one-half share, which was of Dharam Pal in the firm. In CWP No. 6793 of 1976, the petitioners filed returns to the extent of 1/5th share each, of the one-half share of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout deciding whether the notice was valid or not sent to the petitioners the draft order, which he proposed to pass under s. 143(3) read with s. 144B of the I.T. Act. Through these petitions, notice, annex. P-3, and the proceedings being taken in consequence thereof, and the draft order annex. P-4, are challenged on the ground that the notice was without jurisdiction and it could not be issued on the basis of a mere change of opinion alone, when the facts were fully and truly disclosed by the petitioners and the ITO could on enquiry know the facts and that the order of the Commissioner passed under s. 151 of the Act was passed without the application of mind. Respondent No. 1 in the written statement took preliminary objections that the writ petition was premature as only the draft order under s. 144B had been served on the petitioners and they were given an, opportunity to make objections. If and when those objections are made, those will be considered by respondent No. 3. Final assessment, if any, will be made subject to the directions, if any, of respondent No. 2, who is yet to consider the matter. The other objection is that the remedy of the petitioners lies wholly withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant period, could not assess the petitioners in their individual capacity as partners of a firm; (ii) whether the case for the reopening of the assessment is covered by s. 147(a) or s. 147(b) of the I.T. Act (hereinafter called the Act); and (iii) whether the assessment amounts to a change of opinion and whether he, on this ground, can take the proceedings. The objection about the maintainability of the petition requires to be settled first and in my view, the decision on the three questions referred to in para. 6 need not be gone into. The extraordinary jurisdiction of the High Court on the writ side cannot be invoked in normal circumstances. If an authority acts under a statute and the action of the authority in exercising powers is under the provisions of that statute, then the High Courts do not ordinarily interfere in the exercise of that power by that authority. The person seeking the invocation of this jurisdiction of the High Court has to show that the authority lacks jurisdiction or is acting in clear disregard of the law and procedure or has violated the principles of natural justice and has done great injustice to him. Unless such things are made out, the writ ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e course of assessment, on the basis of returns submitted by the assessee as a partner of an unregistered firm, it was found that the firm had transacted business in fictitious names in different commodities and had failed to disclose substantial income earned and a notice was given by the ITO, the Supreme Court observed (p. 428) : " In our view, the petition filed by the appellant should not have been entertained. 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, and the appellant could not 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 had adequate remedy open to him by an appeal to the Tribunal." Following C.A. Abraham's case [1961] 41 ITR 425 (SC), the Supreme Court again in Shivram Poddar v. ITO [1964] 51 ITR 823, observed (p. 829) : " It is, however, necessary once more to observe, as we did in C.A. Abraham's case [1961] 41 ITR 425 (SC), that the Income-tax Act provides a complete machinery for assessment of tax, and for relief in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction, the exercise of power under this article, as a large number of decisions of the Supreme Court and various High Courts amply establish, is subject to a self-imposed restriction that this court would normally be disinclined to interfere at the instance of party who is guilty of undue delay, laches or acquiescence or where the party invoking this court's jurisdiction can have equally adequate and efficacious redress from subordinate Tribunals. These restrictions have been inspired by considerations of public policy and are also guided by sense of respect to the legislature which has enacted laws providing for relief to the aggrieved parties by machinery provided by relevant enactments. In such circumstances this court is normally disinclined to allow its constitutional jurisdiction to be invoked, unless there are some special cogent grounds justifying interference. It was never the object of this article to convert High Courts into appellate assessing authorities whenever an assessee may choose to attack an assessment order on the merits. This reasoning would apply to cases where the assessment order is challenged on the ground that the notice initiating the proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a taxing authority which is, ex facie, with jurisdiction. A petition for a writ of certiorari may lie to the High Court, where the order is on the face of it erroneous or raises a question of jurisdiction or of infringement of fundamental rights of the petitioner." A Full Bench of this court in Jai Hanuman Trading Co. Pvt. Ltd. v. CIT [1977] 110 ITR 36 (P H), took a similar view. The above-quoted extracts from the judgments clinch the matter against the petitioners in these two petitions that bypassing the provisions of the Act and without resorting to the remedies under the Act they cannot crave for the discretion of this court for the issuance of a writ to quash the proceedings, which the ITO had the power under the Act to initiate and continue. The petitioners can take all these objections, including the question of limitation and the disability of the ITO to reopen the case for reassessment on the question of a mere change of opinion, before the concerned authorities dealing with the case. It cannot be assumed on the basis of conjectures that the proceedings will be conducted by the ITO with a prejudice against the petitioners, which might result in a failure of justic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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