TMI Blog2004 (3) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... -3-2004 - Judge(s) : BHASKAR BHATTACHARYA. JUDGMENT Bhaskar Bhattacharya J. - By this writ application, petitioner No. 1, an assessee under the Income-tax Act, 1961 (hereinafter referred to as the "Act") has challenged a letter dated September 9, 1996, issued by respondent No. 1 by which the said respondent has asked petitioner No. 1 to produce relevant books of account in order to substantiate the claim of exemption in support of the return under section 206 of the Act for the financial year 1992-93. The facts giving rise to filing of the instant writ application may be summarized thus: (a) Petitioner No. 1 is an income-tax assessee under the Act and the Assessing Officer of petitioner No. 1 who has the jurisdiction to make assessment under the Act is the Deputy Commissioner of Income-tax, Special Range-11, Calcutta, under the Commissioner of Income-tax, West Bengal-1. (b) Petitioner No. 1 had been deducting tax under section 192 of the Act as also other relevant provisions, and had been depositing the same under section 200 of the Act and also filed annual return in Form No. 24 under section 206 of the Act for the financial year 1992-93. Petitioner No. 1 by a letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain a writ application if the petitioner has efficacious alternative remedy elsewhere; but law is equally settled that existence of an efficacious alternative remedy is not a total bar in entertaining a writ application, particularly in a case, where the authority against whom the writ application is filed is shown to have no jurisdiction or such authority had purported to usurp jurisdiction without any legal foundation. In such cases, a writ court is quite competent to grant appropriate reliefs notwithstanding existence of efficacious alternative remedy. Earlier, in the case of Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, AIR 1987 SC 2186, the Supreme Court reiterated the same principle that when an authority acted wholly without jurisdiction, existence of alternative remedy did not come into the way of the writ court in deciding a writ application. Apart from the aforesaid fact, in my view, the question of existence of alternative remedy should be considered by the court at the time of entertaining a writ application, but if a direction has already been given for filing affidavit, at the time of final hearing, such plea cannot be raised. This writ applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where similar notification was issued in exercise of power under sub-section (1) of section 120 of the Act and in the last page, it was specifically mentioned that in performance of the functions indicated in the said notification, the concerned officer shall have also the power of an Assessing Officer under the following section of the Income-tax Act, 1961, read with the relevant rules of the Income-tax Rules,1962: "(a) power regarding discovery, production of evidence, etc., under section 131 of Income-tax Act, 1961." Dr. Pal thus, contends that such notification having been issued on September 15, 1999 whereas the present case being prior to issue of such notification by taking aid of the notification of May 1,1989, respondent No. 1 cannot exercise his power regarding discovery, production of evidence, etc., under section 131 of the Act when such power was not conferred by the notification dated May 1, 1989. After hearing learned counsel for the parties and after going through the two notifications, viz., (1) dated September 15,1999, and (2) May 1,1989, I find that though in the notification of 1999 the concerned officer was given additional power under section 131, such p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 2, clause (7A) of the Act, he cannot issue directions in terms of section 131 as done by the impugned letter. Therefore, the only question that arises for determination is whether by virtue of the notification dated May 1, 1989, respondent No. 1 has become "Assessing Officer" of petitioner No. 1 in respect of the return under section 206 of the Act. To appreciate the aforesaid question, the notification dated May 1, 1989, and the provisions contained in section 2(7A) of the Act are quoted below: "Government of India, Office of the Chief Commissioner of Income-tax (Admn.), Aayakar Bhawan. P-7, Chowringhee Square, Calcutta-700 069. Calcutta, the 1st May, 1989. Notification No. 3/89-90. In exercise of power conferred under sub-sections (1) and (2) of section 120 of the Income-tax Act, 1961, and all other powers enabling me in this behalf, I, the Chief Commissioner of Income-tax (Administration), Calcutta, hereby create a new Range, viz., Range-21 under the jurisdiction and administrative control of the Commissioner of Income-tax, West Bengal-VII, Calcutta. I also create six new wards under the administrative control and jurisdiction of Range-21, as detailed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ussil district) and W.B.-VII, Calcutta, although, otherwise, respondent No. 1 was not the regular Assessing Officer of petitioner No. 1. Petitioner No. 1 is an assessee within the meaning of the aforesaid expression. Now, once power under section 221 is conferred upon respondent No. 1, it gives power upon him to assess penalty as an Assessing Officer of petitioner No. 1 and it necessarily follows that respondent No. 1 also became the Assessing Officer of petitioner No. 1 in respect of return filed under section 206 of the Act. A power under section 221 can be exercised only by an Assessing Officer as it appears from the language employed in section 221. Now, the moment respondent No. 1 is held to be the Assessing Officer of petitioner No. 1, exercise of power under section 131 , at his instance, is implicit. It is true that in the subsequent notification dated September 15, 1999, it is further clarified that respondent No. 1 is also given power under section 131 but even in the absence of mention of section 131 in the earlier notification, those powers inhere in an Assessing Officer. To obviate ambiguity, by way of clarification, existence of power under section 131 was specifica ..... 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