TMI Blog1959 (12) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent to withdraw and cancel and forbear from giving effect to the notice under sections 28(3), 46(5A) and proceedings under section 46(2) of the Act; (2) a writ of certiorari calling upon the respondent to send for the records of the case and quash the assessment for 1958-59; and (3) a writ of prohibition calling upon the respondent to cancel and forbear from giving effect to or in any way to take any steps in respect of the notices issued under sections 28(3) and 46(5A) and proceedings initiated under section 46(2) of the Act. Briefly the facts on which the petitioner has based his claim are that on January 20, 1959 a notice purporting to be one under section 22(4) of the Act was issued against the petitioner which was served on it on or about January 24, 1959. By this notice the petitioner was called upon to produce account books and bank pass books for the Sambat year 2014 being the previous year for the assessment year 1958-59, on January 29, 1959. Although there is no mention of the date of the service of the notice under section 22(2) of the Act in the notice issued under section 22(4) it is asserted by the opposite party that a notice was issued on May 31, 1958 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9, an appeal was preferred against the assessment order the Appellate Assistant Commissioner and on April 16, 1959, the petitioner made an application to respondent No. 1 under section 45 of the Act praying for an order not to treat the petitioner as a defaulter till the final disposal of the appeal. On April 22, a notice alleged to be under section 46(5A) was issued to the United Bank of India Shillong, United Commercial Bank, Shillong, and the State Bank of India Shillong prohibiting them from making any payment to the petitioner. Copies of these notices were received by the petitioner on April 24, 1959. Certificate under section 46(2) was also issued to the Collector by respondent No. 1. On April 29, 1959, the application under section 27 was fixed for hearing. On that date Sri Sarma the advocate for the petitioner, asked for the inspection of the service report or acknowledgement in token of the alleged service on the petitioner of the notice under section 22(2); but according to the petitioner the inspection was refused. On April 26, 1959, the petitioner made another application to respondent No. 1 to know about the orders passed on his previous application for the stay of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had an alternative remedy inasmuch as he can file an appeal against the cancellation of the assessment under section 27 of the Act. An appeal is provided against an order rejecting an application under section 27. The assessee, therefore, has an adequate alternative remedy available to him and this court should, therefore, not exercise its discretion in its favour under article 226 of the Constitution, until the alternative remedy under the Act has been exhausted. In the present case it is pointed out that the petitioner has not only an alternative remedy available to him, but in fact he has availed of the remedy inasmuch as he has filed an appeal against the assessment. He had filed an application to the Commissioner of Income-tax under section 27 which has also been rejected. A number of authorities were cited to show that when an alternative remedy is available, this court will not exercise its powers under article 226 of the Constitution. As regards the maintainability of an application under article 226 of the Constitution where an alternative remedy exists, the following observation of the Supreme Court in the case of State of Uttar Pradesh v. Mohammad Nooh [1958] S.C.R. 595 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal or revision. The superior court may, quite properly, exercise its power to issue the prerogative writ of certiorari to correct the error of the court or tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity. The reason why the courts refuse to entertain writs when an alternative remedy is available is that the Legislature has set up tribunals for decisions in appeals and, that the remedy which the court could give the petitioner could obtain from these tribunals. But whether the petitioner should be disentitled to maintain the petition or not is a matter of discretion with the court and if the court is satisfied that the petitioner will not get justice from the appellate tribunal or that he would have no confidence in the decision of the tribunal, or that the appeal would be nothing more than to use the language of Sir Trevor Harries an appeal from Caesar to Caesar then the court is not bound to accede to the submission of the department that it should not hear the petitioner. It is true that we cannot judge administrativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi [1952] S.C.R. 696, and quite recently in Basappa v. Nagappa [1955] 1 S.C.R. 250. On these authorities, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior court or tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous. This is on the principle that a court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior court were to re-hear the case on the evidence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee requiring him to furnish a return while the other sub-sections of section 22 only speak of the issue of the notice. Unless, therefore, in the present case it is established that the notice was served on the petitioner in accordance with the law, there was no notice given under section 22(2), and consequently, the assessment under section 23(4) would be without jurisdiction. It is further pointed out that it may not be within the ambit of the powers of the appellate authority to determine if there was a vaild notice under section 22(2) of the Act or not. Section 27 which gives power to cancel the assessment also lays down that the Income- tax Officer shall cancel the assessment, if he is satisfied that the assessee was prevented by sufficient cause from making the return required under section 22. This section presupposes that there has been a service of the notice as contemplated by section 22(2), and the Income-tax Officer while dealing with applications under section 27 is not competent to go into the question as to whether there was any notice at all given under section 22(2). When this part of the section is contrasted with the subsequent portion of section 27, it will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have been previously taken by the person who institutes proceedings before the tribunal. Under various statutes certain notices are requisite before the commencement of proceeings; and the omission to serve such notices deprives the inferior tribunal of jurisdiction and affords ground for certiorari. The next argument pressed by the Advocate-General was that there was an adequate and appropriate machinery in the Income-tax Act itself for the determination of the question as to whether a notice under section 22(2) was served on the petitioner and to find out if there has been a proper assumption of jurisdiction to make a best judgment assessment under section 23(4) of the Act. Any view taken by the Income-tax Officer as regards the service of notices under section 22(2) may be erroneous, but such an error can be remedied in appeal or ultimately by a reference to this court under section 66. The Income- tax Act is a complete code an any grievance of the assessee can be remedied only by having recourse to the Act itself. Reliance was placed on the case of Raleigh Investment Co. Ltd. v. Governor-General in Council [1947] 15 I.T.R. 332 (P.C.). Particular reference was made to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e its powers under article 226 of the Constitution, cannot be accepted. The next case relied upon is the case of In re Lala Lachhman Das Nayar [1952] 22 I.T.R. 418 (Punj.). The facts of the case were that prior to the assessment year 1937-38 the petitioner along with his several sons formed a Hindu undivided family. They were assessed as such. For the year 1938-39, returns were made on the basis of partnership. The Income-tax Officer refused to recognise this partnership. Ultimately on appeal by the assesses the Privy Council held that the firm was registrable as it was a valid partnership on July 29, 1947. For the assessment year 1940-41 to 1944-45 the assessment had been completed but as the High Court had held that the firm was not registrable as there was no genuine partnership the assessment was cancelled. On the returns which had been filed by the firm as constituted except for the year 1941-42 no assessment had been completed. Thereafter, proceedings under section 34 were taken and the total income of the firm was assessed in the hands of the Hindu undivided family on February 14, 1945, before the judgment of the Privy Council. On March 16, 1949, a number of notices were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23(4). The condition precedent for exercise of power under section 23(4) is the failure to file a return on the notice being given under section 22(2) of the Act. Under section 23(4) the Income-tax Officer has not been given any exclusive jurisdiction to determine the fact whether notice under section 22(2) was or was not served and any determination by the Income- tax Officer is amenable to a writ of certiorari by this court. Even if the existence of the preliminary condition has been assumed by the Income-tax Officer, it is examinable by this court in a writ of certioriari if the condition did or did not exist in the present case. In the case of R. v. Bolton [1841] 1 Q.B. 66, which is considered to be landmark in the history of certiorari, it was observed as follows: It is contended that affidavits are receivable for the purpose of showing that they acted without jurisdiction and this is no doubt true, taken literally; the magistrates cannot, as it is often said, give themselves jurisdiction merely by their own affirmation of it. But it is obvious that he is may have two senses; in the one it is true; in the other on sound principle and on the best considered authority, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction on finding that it does exist to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction they also have to consider whatever jurisdiction they give them whether there shall be any appeal from their decision for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist because the legislature gave them jurisdiction to determine all the facts including the existence of the preliminary facts on which the further exercise of their jurisdiction depends. In the case of R.V. Nat Bell Liquors Ltd. [1922] 2 A.C. 128, 156 (P.C.) Lord Sumner dealing with the power of the superior court to interfere with the order of the inferior court by issuing a writ of certiorari observed in the following terms: That the superior court should be bound by the record is inherent in the nature of the case. Its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section and to decide whether to officer construing the section was in the right or in the wrong. The next line of argument of the Advocate-General was that the jurisdiction of the Income-tax Officer to assess done not depend upon the validity or otherwise of the notice under section 22(2) of the Act. Even though therefore it may be accepted that the notice is not proved to have been properly served on the assessee the assessment under section 23(4) cannot be said to be without jurisdiction. Reliance has been placed for this proposition on the case of Chatturam v. Commissioner of Income-tax [1947] 15 I.T.R. 302 (F.C.). The assesses in this case were residents of Jhumritalaiya, a place in the district of Hazaribagh in Chotanagpur Division of Bihar and were assessed for the year 1940-41, the accounting year being 1939-40. On the 20th April, 1940, a notice under section 22(2) Income-tax Act was published in the newspapers requiring them to furnish a return in the prescribed from. On the 22nd April 22, 1940, a notice under section 22(1) Income-tax Act was published in the newspapers requiring persons generally to submit the returns in the prescribed form. The Indian Finance Act of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility though the amount of the deduction is not ascertained until assessment. The liability is imposed by the charging section, namely section 38 (of the English Act) the words of which are clear. The subsequent provisions as to assessment and so on are machinery only. They enable the liability to be quantified and when quantified to be enforced against the subject but the liability is definitely and finally created by the charging section and all the materials for ascertaining it are available immediately. I do not think that this case is of much assistance. The observation of Kania J. in the Federal Court decision referred to above clearly goes to show that the service of notice under section 22(1) and (2) may affect the liability of the penal clauses; but the jurisdiction of the Income-tax Officer to assess is not founded on the notice. In the present case the contention of the assessee is that before section 23(4) could be invoked it was necessary that the notices under section 22(2) should have been served and any wrong decision on the question of giving of the notice under section 22(2) cannot give jurisdiction to the Income-tax Officer to assess under section 23(4). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Court does not cover an omission of a step which the statute regards as a condition precedent to the commencement of proceedings in exercise of jurisdiction. The absence of a notice under section 38 in the present case and the invalidity of the notice under section 24(2) cannot therefore be brushed aside as inconsequential. I am in complete agreement with the observations quoted above. In the case of Ram Niranjan Lal v. Additional District Magistrate, Kanpur A.I.R. 1952 All. 822, the allotment of certain land to one Sardar Kartar Singh was challenged. The applicants in that case were the owners of 40 acres of land. They alleged that they were, since their purchase in 1946, in the cultivator possession of the land. The Additional Collector, however, allotted the land to Sardar Kartar Singh under section 3 of the U.P., on Land Utilisation Act No. V of 1948, The order of allotment was ex part and was passed by the Additional Collector on the ground that notice had been issued to the zamindar applicants; that they had taken the notice but had refused to endorse the acknowledgment. That was considered to be sufficient notice on the zamindar by the Additional Collector and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 or the amount of tax determined under section 23 or 27 can be examined. No power has been given to the appellate authority to go into the question of the service of notice under section 22(2). The appeal therefore against an assessment order cannot be regarded to be any adequate alternative remedy available to an assessee. Section 27 does provide the method by which the validity of the service of notice under section 22(2) may be challenged. But that section gives power to the Income-tax Officer to decide if the assessee was prevented by sufficient cause from asking the return required by section 22. In that connection it may be open to the assessee to say that as there was no service of notice under section 22(2) he was prevented by sufficient cause from filing his return. But in the present case the alternative remedy if any be making an application under section 27 was resorted to and a right of appeal against the order passed under section 27 cannot be said to be an adequate remedy available to the petitioner. Similar view has been taken by the Bombay High Court in the case of Mauladin Ayub Firm v. Commissioner of Income-tax [1959] 35 I.T.R. 449 (Bom.). In the result th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly a clerical commission. The assessment order dated March 14, 1959, under section 23(4) clearly shows that it was not made for the default of a notice under section 22(4) but for failure to fill a return after individual notice had been served under section 22(2). The contention of the assessee is that a notice under section 22(4) could only be issued if a notice under section 22(2) had been served on the assessee. In the present case as no notice was served under section 22(2) on the assessee no valid notice could be issued under section 22(4) and the question of committing any default of such a notice would not arise. But as I have said the order of assessment under section 23(4) was made not for non-compliance with the notice under section 22(4) but for noncompliance with a notice under section 22(2). The main question therefore to be considered is whether any notice under section 22(2) was served on the assessee. Section 63 of the Income-tax Act provides that a notice or requisition under this Act may be served on the person therein named either by post or as if it were a summons issued by a court under the Code of civil Procedure, 1908. Sub-section (2) of section 63 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be received as evidence of the facts as to the service or attempted service of the summons. These provisions clearly point out that the evidence admissible to prove proper service of notice is an affidavit by the peon who is said to have effected the service. No averment has been made in the counter-affidavit by any person who had the personal knowledge of the service of the summons. The service has therefore not been proved by admissible evidence. In the case of Gopiram Agarwalla v. First Additional Income-tax Officer [1959] 37 I.T.R. 493 (Cal) the matter went up in appeal to a Division Bench from the single judge's decision in a matter under article 226 of the Constitution. The Income-tax Officer in that case intended to proceed under section 34(1)(a) of the Act. The first step to proceed further under the aforesaid section is to serve a notice containing the essentials required to be mentioned to a notice under section 22(2) and unless a notice contemplated by section 34(1) is served on the assessee no further steps can be taken by the Income-tax Officer. It was submitted in that case on behalf of the appellant that there was no proper service of the initial noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the present case an application was filed by the assessee on January 27, 1959, for adjournment of the date to file the account books in pursuance of the notice under section 22(4). No objection was raised by the assessee in that application to the effect that the notice had not been served on him. It cannot therefore be said that the assessee had no knowledge of the fact that a notice under section 22(2) had been issued against him and that it should be presumed that the notice had been properly served. As I have already pointed out at no stage the Income-tax Officer investigated the matter as to whether the notice had been properly served on the assessee. The Income-tax Officer assumed that the notice as it was issued in the name of the firm and is reported by the process-server to have been served on some one who accepted it on behalf of the firm has been served on the assessee and thus he had jurisdiction to make an ex parte assessment under section 23(4). The service of the notice being a condition precedent to the exercise of the power under section 23(4), this court can under article 226 examine the matter and see if notice has been properly served. No attempt has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not enough under section 23(4), but that he has also not made a return under sub-section (3) of section 22. Section 22(3) gives a right to the assessee to file a return any time before the assessment has been made. On February 27, 1959, when the default had been made under section 22(4) the assessee might have thought that either he would be granted some time to comply with the notice under section 22(4), thereby giving him sufficient time to file a return under section 22(3) or if the adjournment was refused and he was assessee under section 23(4) for default of notice under section 22(4), he had sufficient grounds to get the assessment cancelled. He could not have anticipated that although the date was fixed for complying with the notice under section 22(4), and the default if any had been committed of the notice under section 22(4) still the Income-tax Officer will regard it as a default under section 22(2) and proceed to assess under section 23(4) and thereby deprive him of an opportunity under section 23(3) to file return. No adverse inference, therefore can be drawn against the assessee regarding the service of notice under section 22(2) on him by his failure to mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service had either not been effected in accordance with the law or at any rate by that time the Income-tax officer had not decided after examining all the circumstances that the notice had been effected. The next point which was urged by the petitioner's counsel was that in the circumstances of the present case the Income-tax Officer should have declared the assessee not to be a defaulter under section 45 of the Act. The argument has been stressed from two-fold aspects. Firstly, that the discretion which has been given to the Income-tax Officer under section 45 to treat the assessee as not being in default is a statutory duty cast upon the said officer and there is a corresponding right in favour of the assessee which he can enforce against the Income- tax Officer by invoking the jurisdiction of this court under article 226 of the Constitution. Secondly, even if it is a discretion vested in the Income-tax Officer the discretion has to be exercised in a judicial manner and it is open to this court to examine the circumstances of each case under article 226 of the Constitution and find out if the discretion has been exercised on sound judicial principles. If this court finds t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) of the Act was also taken by the Income-tax Officer. The order is very brief and mentions that out of the sum of ₹ 73,000 and odd due from the petitioner as tax he had only paid ₹ 10,000 and odd due from the still outstanding. His petition was thus rejected. The order does not mention the reasons which led the income-tax Officer to reject the prayer of the petitioner. In the counter-affidavit filed, it is stated that in response to the application of the petitioner dated April 26, 1959, the copy of the other of April 20, 1959, rejecting the application was supplied to the applicant on May 7, 1959. It is further submitted in the counter-affidavit that as the petitioner did not choose to furnish security for tax dues immediately, in spite of his having large cash in hand to the extent of ₹ 17 lakhs on February 28, 1959, the Commissioner refused to interfere with the order of the Income-tax Officer rejecting the petitioner's application dated April 16, 1959. The commissioner in his order, which I shall examine later, has no doubt referred to certain circumstances which in his opinion disentitle the assessee to get the protection of the proviso to section 45 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... movable wealth, in any shape or from (apart from the things of small value) owned by the aforesaid persons in their won name or through benamidars as on the date of the affidavit and on the date on which he notices of demand has been served on them as well as the amounts of debts and liabilities owned by the assessee to the stated parties along with their full present address. (2) Title deeds of immovable property. (3) An undertaking to the effect that the movable assets and things will not be used or dissipated before the tax liabilities are finally determined and discharged. (4) A letter addressed to the Superintendent of Taxes, Shillong, requesting him to hand over the seized account books to the Income-tax Officer, so that the assessee may be able to make the necessary adjustments in the presence of the Income-tax Officer for the purpose of determining the correct amounts of assessable income and wealth. He further ordered that if the assessee did not comply with the above direction, orders will be passed by him on the 14th instant. In the opening portion of his order he had observed that prima facie the petition had no merit, because according to the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner, to explain his position, cannot substitute the discretion of the Income-tax Officer. The point submitted by the petitioner is that the Income-tax Officer did not discharge his duty in accordance with law and consequently it is no exercise of the discretion by him at all. The fact that opportunity was given by the Commissioner to the petitioner and the fact that the Commissioner has stated that in spite of the said opportunity the assessee had not fully co-operated with the department, points to the conclusion that the income-tax Officer had not applied his mind to these facts and he cannot be said to have exercised his discretion at all in the matter. Section 45 of the Act lays down that any amount specified as payable in a notice of demand under sub-section (3) of section 23A or under section 29 or an order under section 31 or section 33 is to be paid within the time, at the place and to the person mentioned in the notice or order and that any assessee failing so to pay will be deemed to be in default provided that if an assessee has presented an appeal under section 30, the Income-tax Officer may in his discretion treat the assessee as not being in default as lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he did not exercise that power he could be compelled to do so by order under section 45 of the Specific Relief Act. The decision of Bose J. was reversed in appeal on the ground that no appeal had been filed against the order of the assessment. This case, however, is an authority for the proposition that the discretionary power conferred upon an Income-tax Officer is coupled with the duty and if he did not exercise it when the occasion called for it or if he exercised it in a manner that it is no exercise of discretion at all he could be compelled to discharge his duty. The next case referred to is to case of Vetcha Sreeramamurthy v. Income-tax Officer, Vizianagaram [1956] 30 I.T.R. 252 (A.P). In the Andhra case, Ramaswami J. had dismissed the petition filed by the assessee for quashing the proceedings taken under the Revenue Recovery Act for the sale of the properties and for stay. An appeal was filed to a Bench of two judges against the aforesaid decision which was rejected. The matter has no doubt been exhaustively dealt with in this case and, interpreting section 45 of the Income-tax Act, it was held that the discretion of the Income-tax Officer could not be said to be limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tober 26, 1951. The Income-tax Officer ordered the tax to be paid on monthly installments. But as nothing was paid, a penalty of ₹ 20,000 was imposed. Time was then given till March 10, 1952, and extended further to March 20, 1952. An interim order of stay was obtained by the assessee from the Central Board of Revenue which was also vacated on June 19, 1952. The assessee was then finally asked to pay the amount by July 8, 1952, and the writ was filed on the High Court on July 9. The assessee had approached the Income-tax Officer again on July 8, for stay of the recovery and the Commissioner again fixed installments, the last of which was to be paid on March 31, 1953. Under those circumstances, the High Court held that there was no case for the issue of a writ of mandamus directing the Income-tax Officer to exercise his discretion in favour of the assessee under section 45. The next case relied upon is the case of Goverdhan Lal Jagadish Kumar v. Commissioner of Income-tax [1956] 29 I.T.R. 591 (All). That happens to be my judgment and on the circumstances of that case the writ was refused. It was held in that case that the filing of an appeal does not amount to an automatic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was allowed and the matter was sent back to the Wealth Tax Officer directing him to consider the matter or merits. It was observed by Sinha J. that the matter was no doubt in the discretion of the Wealth Tax Officer, but the discretion had to be exercised judicially and the judicial exercise of the discretion involved a consideration of the facts and circumstances of the case in all its aspects. The difficulties involved in the issues raised in the case and the prospects of the appeal being successful is one such aspect. The position and economic circumstances of the assessee is another. If the officer feels that the stay would put the realisation of the amount in jeopardy that would be a cogent factor to be taken into consideration. The amount involved is also a relevant factor. If it is a heavy amount, it should be presumed that immediate payment, pending an appeal in which there may be a reasonable chance of success, would constitute a hardship. Quick realisation of tax may be administrative expediency, but by itself it constitutes no ground for refusing a stay. While determining such an application the authority exercising discretion should not act in the role of a mere tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en made on the March 14, and on the same date a demand notice had been issued. In the appeal filed against the assessment there was substantial questions to be determined. It was, therefore, a fit case where the Income-tax Officer should have applied his mind to the facts before exercising his discretion after giving an opportunity to the assessee to explain his position. The Income-tax Officer in effect did not exercise his discretion at all and acted in an arbitrary manner in disposition of the application of the assessee under section 45 of the Act. Even in these proceedings, no counter-affidavit has been filed stating that the Income-tax Officer considered the circumstances pointed out in the counter-affidavit or in the order of the Commissioner justifying the refusal to exercise the discretion given to the Income-tax Officer under section 45. As I have pointed out earlier the Commissioner could not substitute his discretion to that of the Income-tax Officer and any proceedings before the Commissioner or opportunity given by him to the assessee are not relevant in considering the validity of the order passed by the Income-tax Officer. The petitioner is, therefore, entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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