TMI Blog1956 (3) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... s to believe that the income of the petitioner for the assessment year 1944-45 had escaped assessment and therefore it was proposed to reassess the income of petitioner. The Petitioner was required to deliver a return to the Income Tax Officer within 35 days from the receipt of that notice. An enquiry was held in pursuance of that notice. The Income Tax Officer, Calcutta, by an order made on 1st August, 1949, decided the case in favour of the petitioner. Another similar notice dated 9th March, 1953, was issued under the same section by the Income Tax Officer, A-V ward, Bombay, calling upon the petitioner to submit a similar return of his total income for the same assessment year, viz., 1944-45. The petitioner objected to the jurisdiction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the as is of that notice was that the Income Tax Tribunal in the case of Bhagwandas Harakchand had held that a net profit of ₹ 2,31,315 for which that firm was sought to be assessed was really the profit of Madhavlal Sindhoo (the petitioner before me). Various contentions were raised by the petitioner before the Income Tax Officer and the matter is pending before him. 3. The present petition was filed on 25th October, 1955, and was accepted by this court on 27th October, 1955. Various contentions are raised by the petitioner in support of his present petition for the issuance of a writ of prohibition against the respondents. The contention in the forefront of the petition is that the first respondent had no jurisdiction to issue t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s issued by the Income Tax Officer, Bombay, on 5th October, 1954. and the present petition was filed on as late as 25th October, 1955. It was further stated that the question of delay was not before the appeal Court in the decision relied on by Mr. Zaveri. Mr. Zaveri has urged that where the absence of jurisdiction is patent in any judicial or quasi-judicial matter, a writ of prohibition would issue as a matter of right and regardless of any delay on the part of the petitioner. Learned counsel has relied on a passage in Halsbury's Laws of England, 3rd edition, Volume II, page 115. It is there stated : Where the absence of jurisdiction is apparent on the face of the proceedings and the application is made by a party, the order goes a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judges stand in the place of the sovereign and, therefore, necessarily to be restrained by prohibition. Such usurpation when it is patent has been judicially characterised as in contempt of the Crown. It is with this background that in England it has been held that in such a case the writ of prohibition is demandable of right. But no such considerations need weigh with this Court in appreciating the broad principle that granting of all writs under article 226 of the Constitution including the writ of prohibition is always discretionary though of course different considerations may prevail in case of different writs........................ The following propositions though not exhaustive of the subject are sufficient for the purposes of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here, however, there is patent lack of jurisdiction and the Court is immediately satisfied that the inferior Court of authority has exceeded its jurisdiction, the Court will very readily interpose. The discretion to grant or refuse to grant the writ is of course there. But since discretion contemplates an exercise of arbitrium and not arbitrariness the writ must go though not of right nor or course yet almost as a matter of course unless an irresistible case of withholding the writ is made out. 5. Since the conclusion reached by me is that there was usurpation of jurisdiction by the first respondent which is apparent on the face of the notice read with section 34 of the Income Tax Act, this case must fall in the last category stated abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... si-judicial functions. I had occasion to consider this very question Prashar's case. Reference was made by me to a decision of this Court in Harakchand Makanji Co. v. Commissioner of Income Tax, where a similar question arose in a case of investigation under section 22 (1) of the Income Tax Act. It was there held that a public notice under section 22 calling return of income was the first step in assessment proceedings. It was also there held that notice under section 34 was necessary in certain cases under section 34 as the first step in the assessment proceedings. There is to my mind little force in the present argument and the present contention must be negatived. 7. Mr. Jhavery wanted to refer to some additional points in suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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