TMI Blog1998 (9) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... to rectify the mistakes so far as interest on deposit and interest on loan, etc., are concerned and adding the same in the total income of the petitioner. The petitioner-company submitted its return of income for the assess ment year 1992-93 relevant to the previous year 1991-92 on December 30,1992, showing a total income of Rs. 75,61,610. The total tax including surcharge payable by the petitioner-company amounted to Rs. 39,13,134. In addition a sum of Rs. 1,96,656 was also payable on account of interest under sections 234B and 234C of the Act. Accordingly, the petitioner company has paid a total sum of Rs. 41,09,790. The petitioner-company also furnished a detailed computation of taxable income for the year ended on March 31, 1992, alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mistake is apparent on the face of the record and this is required to be rectified, and till such rectification is made, the tax demand of Rs. 47,82,173 may be stayed. The petition filed by the petitioner-company was disposed of by an order dated June 10, 1993 (annexure IV). By the said order, respondent No. I rectified certain other mistakes except the interest on deposit and interest on loan. Accordingly, after making necessary computation, a sum of Rs. 35,22,340 was determined as payable on account of income-tax inclusive of additional tax and interest due for the assessment year 1992-93. The addition of various incomes with the total income in purported exercise of powers under section 143(1)(a) of the Act has been challenged by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch deduction, allowance or relief or loss carried forward was claimed by the petitioner-company in the return. In view of this, it would appear that the question of making prima facie adjustment in the income of the petitioner-company does not arise.Mr. Joshi, learned standing counsel for the respondents, submitted that there being provision of appeal against an order passed under section 154 of the Act, this petition under article 226 of the Constitution does not lie. He further submitted that the amounts added back are prima facie not acceptable and this is a disputed matter which cannot be adjudicated properly in exercise of writ jurisdiction. In support of his argument, he referred to two decisions reported in Titaghur Paper Mills Co. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it... the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.' The rule laid down in' this passage was approved by the House of Lords in Neville v. London "Express" Newspaper Ltd. [1919] AC 368 (HL) and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant and Co. [1935] AC 532 (PC) and Secretary of State v. Mash and Co., AIR 1940 PC 105. It has also been held to be equally applicable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reference under section 18, it is clearly not permissible for the company or local authority to invoke the jurisdiction of the High Court under article 226 to challenge the amount of compensation awarded by the Collector and to have it reduced." In Titaghur Paper Mills' case [1983] 142 ITR 663, the Supreme Court laid down the ratio while dealing with the powers of the taxing officer under the Orissa Sales Tax Act, 1947, and the Central Sales Tax Act, 1956. In Santosh Kumar's case AIR 1986 SC 1164, the Supreme Court laid down the ratio on consideration of the provisions of the Land Acquisition Act, 1894. To counter the above views laid down by the Supreme Court in the circumstances of those two cases which are virtually different fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd as such the adjustment is impermissible under the first proviso to section 143(1)(a). This conclusion led the Bombay High Court to hold that the alternative remedy available under section 154 and section 264 of the Act could not be considered as efficacious remedies in the present circumstances. In this context it was further held that the remedy under article 226 of the Constitution is not barred. In the instant case also the Assessing Officer has made adjustment as stated in para. 5 of the writ petition without giving any opportunity of hearing to the petitioner-company and the amounts added back to the total income and disallowances made cannot be said to be within the purview of the provisions of clause (iii) of section 143(1)(a). ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
