TMI Blog1978 (10) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... he contention of the petitioner that the properties covered by the settlement deed dated December 29, 1954, executed by the petitioner's father should have been valued on the basis of the position obtaining on the date of the settlement deed did not find favour with the Board also. Out of the order passed by the Board, I.T.R. Nos. 19 of 1966 and 89 of 1967 [P. Gangadharan Pillai v. CED [1968] 70 ITR 640 (Ker)] arose; and these were disposed of by this court as per judgment dated December 6, 1967, a copy of which, is marked as Ex. P-1 in the writ petition. In Ex. P-1 judgment this court had answered question No. 3 in I.T.R. No. 19 of 1966 and question No. 1 in I.T.R. No. 89 of 1967 in favour of the petitioner. Those questions are given below : Question No. 3 its I.T.R. No. 19 of 1966. " Whether, on the facts and in the circumstances of the case, for the purpose of including in the estate the property covered by the settlement dated December 29, 1954, the profits of the business subsequent to the date of settlement which had been ploughed back into the business was properly taken into account by the Board?" Question No. 1 in I.T.R. No. 89 of 1967. " Whether, on the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in prayer is for the issue of a writ of mandamus directing the 4th respondent to dispose of the petitioner's case conformably to Ex. P-1 judgment after quashing Ex. P-5 order by the issue of a writ of certiorari. The alternate prayer is to direct the 2nd respondent to dispose of the petitioner's case in accordance with law, after quashing Ex. P-4 order. Before entering upon a discussion relating to the main prayer I would like to dispose of the alternate prayer. For this purpose, it may be necessary to notice the relevant legislative changes that came into existence in the E.D. Act during the pendency of the proceedings. The E.D. Act, 1953 (Act 34 of 1953), hereinafter referred to as the principal Act, was amended by the E.D. (Amend.) Act, 1958 (Act 33 of 1958) (hereinafter referred to as the " Amendment Act "). For the sake of convenience we will call the Act as amended by the Amendment Act as the amended Act. Section 21 of the Amendment Act provided for the substitution of ss. 56 to 65 of the principal Act by new sections. Whereas s. 63 of the principal Act provided for an appeal to the Central Board of Revenue directly against the valuation under s. 61 made by the Controller, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. Cambatta Co. Ltd. [1956] 29 ITR 118 (Bom), C. P. Sarathy Mudaliar v. CIT[1966] 62 ITR 576 (SC) and Esthuri Aswathiah v. CIT [1967] 66 ITR 478 (SC). In such cases the appeal before the Tribunal could not be deemed to have been finally disposed of till it disposes of the matter conformably to the judgment of the High Court. This is so for the reason that when a reference is made to the High Court under s. 66, the finality attached to the decision of the Tribunal is set at large, and it is only when the Tribunal disposes of the appeal afresh in conformity with the judgment of the High Court that the appeal is finally disposed of. When the Tribunal disposes of the appeal in accordance with the decision of the High Court, what it exercises is its appellate jurisdiction under a. 33 of the (Indian I.T.) Act; and the order passed is under s. 33(4) of the Act. All the powers that could have been exercised by the Tribunal at the time of the earlier hearing of the appeal could be exercised by it while it disposes of the appeal in conformity with the decision of the High Court. There is, therefore great force in the contention of the counsel for the petitioner that the 4th respondent, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of remand which deprived him of his right to move the 4th respondent for referring the matter to the valuers for arbitration, which remedy is not available to the aggrieved party in assessment proceedings under s. 61 of the principal Act (which substantially corresponds to s. 58 of the amended Act) before the Controller. It is the contention of the counsel for the petitioner that it would not be quite correct to equate the final disposal of the matter by the Board with that of the Controller. From the point of view of the petitioner, therefore, it is submitted, the mechanical remand of the matter by the Board to the Controller is not an innocuous or inconsequential thing; in effect it amounts to failure on the part of the Board to exercise the appellate jurisdiction vested in it in accordance with the statutory provisions. It is also submitted by the counsel for the petitioner that if at all the 4th respondent required any additional particulars to dispose of the appeal in accordance with the decision of this court, what it ought to have done was to call for a report from the first respondent, without completely abdicating its functions without stating any reasons for doing so, pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in Kesava Mill Co. Ltd. v. Union of India [1973] AIR 1973 SC 389, in an attempt to establish that failure to give notice to the petitioner by the Board did not amount to denial of natural justice, causing any material prejudice to the petitioner inasmuch as, it, after all, was only an order of remand, and the proper contest was to be before the Asst. Controller who was directed to enquire and dispose of the matter. I have already pointed out that in view of the fact that the procedure for determination of the valuation to be followed by the Board on the one hand, and the Asst. Controller on the other, is not fully identical, the passing of the order of remand cannot be treated as a mere routine act of no consequence ; there would be cases where such remands could result in a grave miscarriage of justice. The counsel for the revenue then contended that, at any rate, because of long delay and laches on the part of the petitioner, the relief could not be granted in proceedings under art. 226 of the Constitution. It is also his contention that inasmuch as a remedy by way of reference is provided for by the statute, this court should refrain from exercising the extraordinary juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered. The petitioner prays that Ex. P-5 order, rejecting the petitioner's petition dated February 24, 1974, might be quashed on the ground that there was no disposal of the petitioner's appeal before the 4th respondent conformably to Ex. P-1 judgment, in accordance with the provisions of s. 64(7) of the Act. The question is as to whether there was a disposal of the appeal by the 4th respondent under the purported order of remand dated February 8, 1968. There is no case for the revenue that the purported order of remand was passed after hearing the petitioner or at least after giving notice to him. I have already adverted to the difference of the scope of the enquiry before the 4th respondent in appeal proceeding on the one hand and that of the enquiry before the first respondent in assessment proceedings on the other, inasmuch as the provisions similar to what are contained in sub-ss. (4) and (5) of s. 63 of the principal Act are not found in s. 61 of the principal Act (which Act is applicable to the case of the petitioner). The contention of the petitioner is that the purported order of remand dated February 8, 1968, is null and void in the eye of law inasmuch as it is passed with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nity to raise the objection before him. Even if the petitioner had raised his objection before the appellate authority, it is very doubtful that the appellate authority could have pawed a valid order even after complying with natural justice. Normally, as already indicated, neither the appellate authority nor the Commissioner could have passed a valid order, even after complying with natural justice. Assuming that the appellate or the revisional authority could have passed an original order of assessment after giving a pre-assessment notice, the right of appeal vested in a party to an Appellate Assistant Commissioner against an original order of assessment would become otiose. Even if no appeal or revision had been filed by the petitioner, it would have been open to the petitioner to approach this court and challenge the order of the Income-tax Officer on the ground of non-compliance with the principles of natural justice. If the order of the Income-tax Officer was a nullity and if the petitioner had no opportunity to object to the procedure which made the order a nullity, I do not think the fact that he did not raise the objection in the appeal or in the revision should be a groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res consideration is whether because of the provisions contained in art. 226(3) of the Constitution, there is a bar against this court granting the relief. When the relief sought in a writ petition in essence is for the enforcement of any of the fundamental rights under Part III of the Constitution incidentally avoiding or ignoring orders which are ex facie null and void or which reflect failure on the part of the authority passing such orders to exercise the jurisdiction vested in that authority the provisions contained in art. 226(3), in my view, will not constitute a bar against the maintainability of such a writ petition. It is the nature of the order that is under challenge, not the alternate remedy that is available, that is relevant when a question of application of art 226(3) or s. 58(2) of the Forty-Second Constitution ( amendment) Act. 1976, comes up for consideration. In this case we have already noticed that the purported order of remand dated February 8, 1968, is null and void in the eye of law. It is also a case where the fundamental rights of the petitioner under arts. 19(1)(f) and 31 of the Constitution are involved. In terms of our Constitution there could be no le ..... X X X X Extracts X X X X X X X X Extracts X X X X
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