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TMI Blog1977 (6) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... nt certificate in original as given to him by the Government, the bank pass book and other relevant documents in connection with the hearing of the assessment proceedings. No order of assessment was, however, passed and no notice of demand was sent to the appellant. On June 15, 1973, the appellant made an application for income-tax clearance certificate. On June 16, 1973, a certificate was given to the appellant by one P. K. Chatterjee, Income-tax Officer, Project Circle, North Bengal, Siliguri. In paragraph A(ii) of page 2 of the certificate it was inserted in ink by the said P. K. Chatterjee that the returns of income filed by the appellant for the assessment years 1967-68 to 1969-70 were invalid. It is the case of the appellant that on coming to know of the said insertion he, by his letter dated August 22, 1973, addressed to the said Income-tax Officer, stated that all the returns in question were submitted by him in time, but he was not informed of the alleged invalidity of the returns filed by him. Further, it was stated by him in the said letter that he was not given any opportunity of being heard as to the alleged invalidity of the returns and requested the Income-tax Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appellant did not show the prescribed particulars and, therefore, the revenue was entitled to ignore the returns and proceed to issue notices under section 148 of the Income-tax Act, 1961. Upon the said findings, the learned Judge discharged the rule. Hence, this appeal. Before proceeding to consider the respective contentions of the parties on the merits of the case, we may first of all dispose of a preliminary objection taken by Mr. Nanda Lal Pal, learned advocate appearing on behalf of the respondents. It was contended by him that by virtue of the provisions of section 58(2) of the Constitution (Forty-Second Amendment) Act, 1976, the petition under article 226 of the Constitution of which the rule nisi was issue had abated. In order to consider this contention we may refer to clause (1) and clause (3) of article 226 as substituted by section 38 of the Constitution (Forty-Second Amendment) Act, 1976. The said provisions are as follows: "226. Power of High Courts to issue Certain writs.--(1) Notwithstanding anything in article 32 but subject to the provisions of article 131A and article 226A, every High Court shall have power, throughout the territories in relation to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Act, 1961. The said Act does not contain any provision providing for any remedy for the redress of which the appellant sought by the petition under article 226. It was, however, argued on behalf of the respondents that although the said Act did not contain any such provision still, if the assessment had been reopened and an order making the assessment passed, the appellant could have preferred an appeal against the order of assessment, and in such appeal he could also challenge the jurisdiction of the Income-tax Officer to issue the impugned notices under section 148. It was contended that the appellant was not without any remedy for such redress and, accordingly, by virtue of the provisions of sub-section (2) of section 58 of the Constitution (Forty-Second Amendment) Act, 1976, the writ petition stood abated. We are unable to accept this contention. The redress which was sought for by the appellant by filing the writ petition in this court was against an injury that he might suffer by the reopening of the assessments. In other words, he challenged the jurisdiction of the Income-tax Officer to issue the impugned notices under section 148. The remedy referred to in clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be by suits. There is hardly any matter or any dispute which cannot be decided or any relief which cannot be granted in a suit of a civil nature, and if, in all cases, the suit is considered to be a remedy for redress against the injury as mentioned in clauses (b) and (c) of article 226(1), we are afraid, no petition under article 226 would be maintainable for the redress of any injury under clauses (b) and (c). In our opinion, by amending article 226 the legislature never intended to take away in an indirect way the jurisdiction of the High Court to issue writs. The maintainability of a petition under article 226, in our view, depends on the facts and circumstances of each particular case. But when any act. or omission of a statutory authority is challenged, and the statute concerned does not provide for any remedy against such act or omission, the writ petition would be maintainable. In the instant case, we do not think that the appellant had or has any remedy for the redress of the injury by or under any other law for the time being in force. In these circumstances, in our view, the petition under article 226 had not abated as contended on behalf of the respondents. We may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfied without requiring the presence of the assessee or the production of evidence that the return is correct and complete, he shall serve on the assessee a notice requiring him, on a date to be therein specified, either to attend at the Income-tax Officer's office or to produce, or to cause to be there produced, any evidence on which the assessee may rely in support of the return. (3) On the day specified in the notice issued under sub-section (2), or as soon afterwards as may be, the Income-tax Officer, after hearing such evidence as the assessee may produce and such other evidence as the Income-tax Officer may require on specified points, and after taking into account all relevant material which the Income-tax Officer has gathered, shall, by an order in writing, assess the total income or loss of the assessee, and determine the sum payable by him or refundable to him on the basis of such assessment." The expression " that the return is correct and complete " is significant. It obviously refers to section 139 of the Act, for a return is not correct and complete if it does not conform to the provisions of that section. In other words, if a return is not verified in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded, then section 143 would become nugatory. If that was the intention of the legislature, there would not have been any necessity for it to provide for the procedure which the Income-tax Officer is to follow when a return is not correct and complete. In the case of Commissioner of Income-tax v. S. Raman Chettiar [1965] 55 ITR 630 (SC), a return was filed pursuant to a notice under section 34 of the Indian Income-tax Act, 1922. The said notice was invalid as the sanction of the Commissioner of Income-tax was not obtained. The income shown by the assessee in the return was below the taxable limit and consequently the assessment proceeding was dropped as infractuous. Subsequently, another notice was issued under section 34 of the said Act and the Income-tax Officer made the assessment assessing the assessee to tax. It was held by the Supreme Court that although the first notice under section 34 was invalid, the return submitted by the assessee pursuant to that notice was a return within the meaning of section 22(3) of the said Act, and the Income-tax Officer could not ignore or disregard that return and issue another notice under section 34 on the assumption that there had been an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held in that case that when a return was not signed and verified there was no valid return at all and the Income-tax Officer would be justified in making an assessment to the best judgment under section 23(4) of the Indian Income-tax Act, 1922. It thus appears to be well settled that when a return has been filed by an assessee, it cannot be ignored by the Income-tax Officer and he will have no jurisdiction to issue a notice under section 148 without completing the assessment on the return filed by the assessee. Even though a return is invalid in the sense that it is not correct and complete within the meaning of section 139 of the Income-tax Act, 1961, the Income-tax Officer cannot ignore or disregard the same for the purpose of issuing a notice under section 148 of the Act, unless the return can be regarded as not a return in the eye of law as in the case of the two illustrations given above. In the instant case, the Income-tax Officer acted on the returns filed by the appellant, issued notices under section 143(2) and heard the appellant for the assessment years in question under section 143(3), but without completing the assessments he took recourse to reopen the assessments un ..... 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