Dhaniram Gupta v. Union Of India And Another (No. 1).

1. In this application under Article 226 of the Constitution, Shri Dhaniram Gupta, the petitioner herein, challenges the assessment order passed under Section 144 of the Income-tax Act, 1961, for the assessment year 1965-66, and the notice of demand in respect of the same. It appears that Dhaniram Gupta was a partner of the firm of Dhaniram Gupta & Co. This application is in respect of the individual assessment of Dhaniram Gupta. There are certain allied applications which I shall dispose of by separate judgments hereinafter in respect of the firm. Some confusion has been created by inter-relating the facts of these two assessments. However, it will be necessary to refer briefly to the facts. It appears that Messrs. S. K. Sawday & Co., a firm dealing in tax matters, was acting for Dhaniram Gupta at the initial stages of assessment and of this application. Thereafter, there was a change. On the 28th June, 1965, the petitioner individually filed a return of income through Messrs. S. K. Sawday & Co., showing the total income at Rs. 31,440. On the 31st January, 1967, searches were made at the office of Dhaniram Gupta & Co. and also at the petitioner's residence under Section 132 of the Income-tax Act, 1961, and it has been alleged that a large number of books of account and documents had been seized. It has been further alleged that after the said seizure in 1967, sanction for retention of documents beyond the period of 180 days . had not been obtained. In any case, I am not concerned in this application with the question of propriety of search and seizure under Section 132 of the Act or with the question of retention of documents beyond 180 days. On 30th May, 1967, the petitioner was informed that the file had been transferred to another Income-tax Officer. On the 10th April, 1967, Messrs. S. K. Sawday & Co. wrote to the Commissioner of Income-tax asking for a permission to see the books of account and documents. On the 1st November, 1968, a letter was written by the Income-tax Officer to Dhaniram Gupta & Co., stating that the return of the documents was under consideration. It was stated in that letter that copies of the documents might be obtained from the Income-tax Officer. On the 25th August, 1969, Messrs. S. K. Sawday & Co. wrote a letter to the Income-tax Officer asking for some specified documents. On the 19th January, 1970, notices under Sections 142(1) and 143(2) of the Income-tax Act, 1961, issued by the Income-tax Officer, were seived on the petitioner. One of the ground urged in respect of this petition was that the notices had not been served. I will deal with that question later. Thereafter, on the 20th January, 1970, the petitioner's case was fixed for hearing and adjournment was granted till 11th February, 1970. According to the petitioner between the affidavit of the Income-tax Officer and the assessment order, there was contradiction about the circumstances under which the adjournment was granted till 11th February, 1970. It is, however, not necessary to advert to that controversy in detail. It appears that Dhaniram Gupta attended the, assessment proceedings at one stage on the 11th February; it would, therefore, be proper to rely on what is stated in the assessment order. It appears that the assessment order was passed on the 18th March, 1970. By the said assessment order the total income was commuted at the sum of Rs. 22,76,015.

2. In support of this application, counsel for the petitioner, first, urged that the notices under sections 142(1) and 143(2) had not been served. I am, however, unable to accept this contention. In paragraph 8 of the petition it has not been categorically stated that no notice had been served on the petitioner. On the contrary what has been stated is that the petitioner does not remember whether any notice had been served or not. As mentioned hereinbefore, the petitioner appeared before the Income-tax Officer on the 11th February, 1970, and did not state before the Income-tax Officer that no notice had been served as would be apparent from the assessment order. At the time of the hearing of this application certain receipts alleged to have been signed on behalf of the petitioner were produced. It was, however, denied on behalf of the petitioner that any such notice was received at the time of the hearing of this application. In the view I have taken on the question of the alternative remedy to be mentioned hereinafter, I do no propose to decide this question finally, but, prima facie, the petitioner has not been able to adduce satisfactory evidence in support of the contention that the notice under sections 142(1) and 143(2) had not been served.

3. It was next urged that the notice, if served, was impossible of compliance, because by the said notice evidence and explanations were required to be produced, while the books and documents and papers from which such evidence and explanations could be given, were under the custody of the income-tax department. Therefore, it was urged that it was impossible to comply with such notice. It was further urged that in any event it was unreasonable to require compliance with such notice. I am, however, unable to accept either of these contentions. The notice required certain explanations. It is true that the books and documents had been seized and were in the custody of the income-tax department, but under Section 132(9) of the said Act the petitioner could have obtained copies of the same. The petitioner did not make any application for such copies. Furthermore, the petitioner appeared on the nth February, 1970. The petitioner could have looked into the relevant records to meet the requisitions contained in respect of the matter mentioned in the said notice. He did not ask for such facility. If in a particular case certain documents are in the custody of the department and still the department wants production of the same, it may be urged that in such a case compliance was impossible but in this case it was not so. Simply because there had been a seizure under Section 132 of the Income-tax Act, 1961, Section 142 and Section 143 do not become inoperative ipso facto. The different sections of a statute should be read harmoniously, if possible. It might be that in a particular case the notice is in such terms, for example, requiring actual production of certain documents in custody of the department or where if copies had been asked for and had not been supplied, in such a case it is possible to contend that because of search and seizure under Section 132 of the Act, compliance with notice under Sections 142 and 143 was either not possible or difficult. That is not the case here. Counsel for the petitioner urged that compliance in terms of the notice was not possible. I do not find anything in the notice from which it could be inferred that production of the documents was required, which were in the custody of the department. Therefore, I am unable to accept the contention that it was impossible to comply with the notice or it was unreasonable to ask compliance with the notice.

4. Counsel for the petitioner urged that there has been no approval of the Commissioner beyond the period of 180 days for the retention of the seized documents. It was, therefore, urged that the retention was illegal. Reliance was placed on the decision in the case of Mahabir Prosad Poddar v. Commissioner of Income-tax, [1970] 77 I.T.R. 343 (Cal.). In this application, however, I am not concerned either with the question whether the seizure was valid or whether retention of the documents beyond the period of 180 days was valid or not. That is not the point taken in this petition. Therefore, I do not propose to enter into that controversy in this case.

5. The main reason, however, why the petitioner is not entitled to any relief in this application is that the petitioner has preferred an appeal.

The appeal is pending against the said assessment order. On this aspect, counsel for the petitioner first placed reliance on the decision of the Supreme Court in the case of Baburam Prakash Chandra Maheshwari v. Zilla Parishad, Muzaffarnagar, . The Supreme Court observed in that case that the doctrine of the exhaustion of statutory remedies was subject to two well-

recognised exceptions, first, where the provision for proceedings before the Tribuna. was ultra vires, and, second, when there had besn violation of the principles of natural justice. Counsel for the petitioner also placed reliance on the Special Bench decision of this High Court in the case of In re Sadaram Puranehand, A.I.R. 1931 Cal. 729 (Cal.) [S.B.] for the proposition that the assessment under Section 23(4) of the old Act corresponding to Section 144 of the Income-tax Act, 1961, was a serious thing and the assessee should be given reasonable opportunity. My attention was also drawn to the decision of the Punjab High Court in the case of M. Mohd. Ishaq v. Commissioner of Income-tax, [1955] 27 I.T.R. 510 (Punj,) for the proposition that reasonable notice was required to be given to the assessee. If any Income-tax Officer recovered any tax except in accordance with the procedure established by law, it was a taking of property in contravention of the provisions of Article 31 of the Constitution. Counsel for the petitioner also drew my attention to Halsbttry's Laws of England, 3rd edition, volume 11, page 132, to the decision in the case of Bhika Mat Musaddi Lal v. Commissioner of Sales Tax, [1963] 14 S.T.C. 770 (All.), Slate of U. P. v. MohamMad Nook, A.I.R. 1958. 86. 93, 94 and State of Kerala v. Markose, A.I.R. 1962 Ker. 133 in support of the proposition that the disputed questions of fact can also be investigated by the court in an application under Article 226 of the Constitution. Counsel for the petitioner also drew my attention to the decision of the Supreme Court in the case of Smt. Gunwant Kaur v. Municipal Committee, Bhatinda, .

6. It has, however, been held by a Special Bench of this court in the case of Sheo Nath Singh v. Appellate Assistant Commissioner of Income-tax, [1968] 67 I.T.R. 254 (Cal.) [F.B.] that where the assessee was actively pursuing an alternative remedy, the assessee was not entitled to invoke the jurisdiction of Article 226 of the Constitution. It was urged by counsel for the petitioner that in that case there was evidence that the assessee was actively pursuing the appeal. In this case, it was submitted, that the assessee had merely filed the appeal to save the plea of limitation and as such there was no evidence of active pursuit of the appeal by the assessee. In my opinion the correct position is that generally, except in the cases of clear violation of the principles of natural justice and where on admitted facts an authority had no jurisdiction or where there is a question of infringement of fundamental rights or where statute or section which provides the alternative remedy is under challenge as ultra vires, there must be good explanation why the alternative remedy should not be resorted to by the party aggrieved before he is permitted to invoke the jurisdiction of the High Court under Article 226 of the Constitution, even in a case where there is an alternative remedy. It has been reiterated more than once that the existence of the alternative remedy was no bar to the exercise of the jurisdiction by the High Court under Article 226 of the Constitution, but was a factor that should be taken into consideration in exercising the discretion of this court. In this case it has to be remembered that not only there is an alternative remedy but resort has been made to that alternative remedy. There is no evidence that the petitioner has no intention to proceed with the alternative remedy.

Indeed, the petitioner cannot abandon the alternative remedy resorted to because under the scheme of the Income-tax Act an appeal against assessment once preferred by an assessee cannot be withdrawn. In that view of the matter in order to avoid the possible conflict of decisions this court would hesitate to entertain an application like this under Article 226 of the Constitution. There is, however, an added reason why this court should not entertain the application. Here, the ground is the alleged violation of the principles of natural justice but the violations which have been alleged are of such nature that they have to be established by adjudication of disputed questions of fact, that is to say, whether notice under Sections 142 and 143 of the Act had been served or not and whether in the facts and circumstances of the case the petitioner could have complied with such notice. Both these contentions, in my opinion, are contentions which involve detailed examination of facts and there is no reason why the alternative remedy, resorted to by the petitioner, would not afford the petitioner an effective remedy. There is another aspect of the matter. If the petitioner's contention is that the petitioner did not have reasonable opportunity, the petitioner should have made an application under Section 146 of the Income-tax Act, 1961. The petitioner did not make such an application. The petitioner has not stated any reason for not making such application. The petitioner moved this application under Article 226 of the Constitution on the 13th April, 1970. In that petition the petitioner did not state that the petitioner was filing an appeal. On the other hand, the petitioner stated in paragraph 15 of the petition that alternative remedy was not adequate. Yet three days thereafter, the petitioner preferred an appeal to the Appellate Assistant Commissioner. Having considered all the aforesaid circumstances of the case, I am of the opinion that the petitioner is not entitled to maintain this application under Article 226 of the Constitution.

7. For the reasons mentioned hereinbefore this application must fail and is, accordingly, dismissed. Rule nisi is discharged. Interim order, if any, is vacated. There will be a stay of operation of this order for four weeks from date. This stay will not prevent the income-tax department from initiating or concluding any other proceedings in connection with the said assessment in the meantime if they are so advised but will not enforce the same for a period of four weeks from date. There will be no order as to costs.

Re: Chamber Application

8. In view of the order made in the main rule, no order is made in the connected chamber application. There will be no order as to costs.