TMI Blog1983 (9) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... s account were made after his death. The petitioner was asked to intimate as to how much amount he was holding for and on account of late Shri Rana till the date of his death, the details of any securities or shares belonging to the Rana lying with the petitioner and if any amount had been withdrawn by the successors of the late Rana from the said accounts. The petitioner, vide his letter dated June 30, 1964, informed that an aggregate amount of Rs. 40,12,88637 was due to the Rana on the date of his death and that none of his successors had ever approached the petitioner for withdrawal of the said amount. The petitioner was asked to furnish the details of the various credits given and also to get a confirmation of the credit balance from the son of the said Rana. The petitioner filed copies of late Rana's account showing credit balances of Rs. 26,14,672.75, Rs. 28,52,718.42, Rs. 34,75,886.37 and Rs. 38,12,886.37 in the years ending December 31, 1960, December 31, 1961, December 31, 1962 and December 31, 1963, respectively. He also informed the ITO that the question of getting any confirmation from the successors of the Rana did not arise because nobody had so far obtained any succe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d another sum of Rs. 2,36,92067 was credited during the accounting year ending December 31, 1961. The said amount could be recovered by the Rana within a period of three years but the period was extended on account of a payment on Rana's account on account of call money on 1,000 shares of Indian Trade General Insurance Co. Ltd. and, therefore, the time for recovery expired in the assessment year 1965-66. Another sum of Rs. 6,23,167.95 was credited to the account of the Rana during the accounting year ending December 31, 1962. This included a sum of Rs. 1,96,000 towards the cost of shares but the entry would have to be reversed because the shares had not been delivered. Thus the amount of Rs. 4,27,167.95 became irrecoverable in the assessment year 1966-67. The third item of Rs. 3,37,000 was credited in the account of late Rana during the accounting year ending December 31, 1963. A sum of Rs. 79,500 would have to be deducted because the shares had not been delivered and the remaining amount, i.e., Rs. 2,57,500, became irrecoverable during the assessment year 1967-68. The heirs of the Rana had not so far come forward to claim this amount for various reasons. These three amounts coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mittedly filed the revised income-tax returns for the years 1965-66, 1966-67 and 1967-68 and added the amounts, as per settlement, to his income for the three years and was assessed accordingly. For the assessment year 1961-62 he was allowed deletion of Rs. 11,84,062 and Rs. 1,67,145 as agreed by the ITO before the AAC. The petitioner filed an appeal against the order of assessment for the assessment year 1965-66. The appeal was partly allowed regarding other items and the income was reduced by Rs. 3,69,325 by the AAC, vide his order dated August 31, 1968. The petitioner thereafter filed an appeal (annexure K) to the Income-tax Appellate Tribunal which since has admittedly been dismissed. On February 2, 1972, the petitioner filed the present petition under articles 226 and 227 of the Constitution of India seeking a writ of certiorari or in the nature of certiorari for quashing the order of the Commissioner accepting the offer of settlement, the assessment orders for the assessment years 1965-66, 1966-67 and 1967-68 based on the impugned settlement in respect of s. 41(1) of the Act, and consequent demands of tax, penalties and interest and for declaring the recovery proceedings in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act had no application to the facts of the present case and the impugned settlement and the assessment orders made on the basis of the said settlement were vitiated by law and were ultra vires, void and without jurisdiction. The ITO, respondent No. 2, in his reply-affidavit controverted the various pleas. It was averred that there was no coercion or harassment of the petitioner. The petitioner himself made an offer for agreed assessment under s. 41 of the Act. The petitioner himself filed returns for the assessment years 1965-66, 1966-67 and 1967-68 after including the amounts agreed to be assessed as income of those years and the assessment was made accordingly and the petitioner could not now complain or question the assessments. The allegations that the orders were void or without jurisdiction were denied. It was averred that the assessments were totally legal and in accordance with the provisions of the Act. Admittedly, the appeals filed by the petitioner against the assessment orders for the assessment years 1966-67 and 1967-68 have since been allowed by the Appellate Tribunal and the cases remanded for fresh assessment. The petition, therefore, survives only in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oach the High Court directly against the action. " In Isha Beevi v. TRO [1975] 101 ITR 449, the Supreme Court held (p. 453) : " The existence of an alternative remedy is not generally a bar to the issuance of such a writ or order. But, in order to substantiate right to obtain a writ of prohibition from a High Court or from this court, an applicant has to demonstrate total absence of jurisdiction to proceed on the part of the officer or authority complained against. It is not enough if a wrong section or provision of law is cited in a notice or order if the power to proceed is actually there under another provision. " It has, therefore, to be seen whether the settlement and the assessment order for the assessment year 1965-66 involved a question of patent lack of jurisdiction. If the authorities under the Act had no jurisdiction to add this income then, in my view, this court would be justified in issuing a writ in exercise of its extraordinary jurisdiction under article 226 of the Constitution. In the return filed by the petitioner for the year 1965-66 he showed his income as Rs. 1,13,675. After the impugned settlement he filed revised return adding Rs. 28,51,593 as agreed un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Appellate Tribunal. He never challenged the correctness of the admissions made by him about the existence of these facts in his application for settlement (annexure D). He never withdrew the admissions before the authorities under the Act. In these circumstances, he cannot be allowed to resile from his admissions or raise these disputed questions of fact for the first time in this petition under art. 226 of the Constitution. The disputed questions of fact cannot be investigated by this court in exercise of its extraordinary jurisdiction under art. 226. The Supreme Court in Shivram Poddar v. ITO [1964] 51 ITR 823, observed as under (p. 829): "It is however, necessary once more to observe, as we did in C. A. Abraham's case [1961] 41 ITR 425 (SC), that the Income-tax Act provides a complete machinery for assessment of tax, and for relief in respect of improper or erroneous orders made by the revenue authorities. It is for the revenue authorities to ascertain the facts applicable to a particular situation, and to grant appropriate relief in the matter of assessment of tax. Resort to the High Court in exercise of its extraordinary jurisdiction conferred or recognised by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed from the Rana ". Regarding the remaining amount which was found to have been credited in the previous years, the ITO initiated action under s. 147 of the Act for reassessment of income for those years. The petitioner filed an appeal against the said order. The Department in the meantime bad initiated recovery proceedings. The petitioner, therefore, filed an application for stay. During those proceedings he made an offer for settlement in his application dated August 24, 1966 (annexure D). According to the offer made by the petitioner, the credit balances in the account of the Rana were to be allowed as trading liability as claimed by him. The liability for Rs. 28,51,593.42 was to be treated as having ceased in the assessment year 1965-66 and the remaining liabilities in the assessment years 1966-67 and 1967-68 and these amounts were to be treated as I income under s. 41 on that account in those years. This offer was accepted by the Commissioner. Though some other conditions were not accepted, the fact remains that after the acceptance, the petitioner acted upon the same and filed revised returns. It is clear from an examination of the application for settlement that the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
