9911796707
TMI Blog1971 (3) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 31 st January, 1967, searches were made at the office of Dhaniram Gupta & Co. and also at the petitioner's residence under section 132 of the Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 computed at the sum of Rs. 22,76,015. In support of this application, counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 11th February, 1970. The petitioner could have looked into the relevant records to meet the requisitions contained in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Podday v. Commissioner of Income-tax. 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. 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 petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition 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. 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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