TMI Blog1965 (3) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... nd issue a notice in accordance with law. - Civil Appeal No. 62 of 1964 - - - Dated:- 29-3-1965 - Judge(s) : K. SUBBA RAO., J. C. SHAH., S. M. SIKRI JUDGMENT The judgment of the court was delivered by SUBBA RAO J.--The facts leading up to this appeal may briefly be narrated. Gujarat Cotton Mills Co. Ltd., hereinafter called "the company", is a limited company having its registered office at Ahmedabad. In the year 1938, the company appointed Messrs. Pira Mal Girdhar Lal and Co., hereinafter called "the agency firm", as its managing agents. On February 28, 1938, a formal agreement was entered into between the company and the agency firm. The said agency firm was formed under an instrument of partnership dated February 26, 1938, with 11 partners--3 of them are compendiously described as the "Bombay group" and the remaining 8 of them as the "Kanpur group". With certain variations in the constitution of the agency firm, the said firm functioned as the managing agents of the company till September, 1946. In September, 1946, the shareholding of the partners of the agency firm in the company was as follows : Kanpur group ... 32,500 shares Bombay group ... 26,362 shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place of the word "assessed" in its previous order. The assessee raised various contentions before the Income-tax Officer, inter alia, that the said income was not liable to be taxed under section 12B of the Income-tax Act under the head "Capital gains" and that in any case in order to determine the amount of capital gains the market value of the shares only should be taken into consideration, as the price of Rs. 65 per share included also the consideration for the relinquishment of the managing agency rights. The Income-tax Officer rejected the said contentions of the assessee. He re-determined the assessable income under the heading " Capital gains " but did not issue a notice of demand as prescribed in section 29 of the Income-tax Act. After making an infructuous attempt to get suitable directions from the Appellate Tribunal, on March 5, 1956, the assessee filed an application before the Income-tax Officer to issue a notice of demand under section 29 of the Income-tax Act so that it might prefer an appeal against the same to the appropriate authority. But the Income-tax Officer refused to issue any such notice. The assessee preferred an appeal against that order to the Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anatha Sastri, learned counsel for the appellant, contended that the affidavit filed in support of the petition was in accordance with law, and that, even if there were any defects, the court should have given an opportunity to the appellant to rectify them ; and that the High Court should have held that the revision against the order of the Income-tax Officer to the Commissioner was maintainable under section 33A of the Act, as the appeal against that order to the Appellate Assistant Commissioner was not maintainable and that it should have directed the Commissioner to entertain the revision and dispose of it in accordance with law directing the Income-tax Officer to issue a notice of demand under section 29 of the Income-tax Act. He further contended that the High Court went wrong in holding that the facts in the Bombay decision were different from those in the present case, for the facts in both the cases were the same and in fact they arose out of the same transaction, namely, the sale of the shares by the agency firm to the purchaser firm. Mr. Gopal Singh, learned counsel for the revenue, while supporting the order of the High Court raised a preliminary objection, namely, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s court in Basappa v. Nagappa and Irani v. State of Madras. But we are satisfied that this case falls directly within the confines of the certiorari jurisdiction as understood in England. It is well settled that a writ of certiorari can be issued only to quash a judicial or a quasi-judicial act and not an administrative act. It is, therefore, necessary to notice the distinction between the said two categories of acts. The relevant criteria have been laid down with clarity by Atkin L. J. in Rex v. Electricity Commissioners, elaborated by Lord Justice Scrutton in Rex v. London County Council and authoritatively restated in Province of Bombay v. Kusaldas S. Advani. The said decisions laid down the following conditions to be complied with : (1) The body of persons must have legal authority ; (2) the authority should be given to determine questions affecting the rights of subjects ; and (3) they should have a duty to act judicially. So far there is no dispute. But in decided cases, particularly in India, there is some mixing up of two different concepts, viz., administrative tribunal and administrative act. The question whether an act is a judicial act or an administrative one arises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrol by means of these orders) although there is no form of lis inter partes before it : it is enough that it should have to determine a question solely on the facts of the particular case, solely on the evidence before it, apart from questions of policy or any other extraneous considerations. Moreover an administrative body, whose decision is actuated in whole or in part by questions of policy, may be under a duty to act judicially in the course of arriving at that decision....If, on the other hand, an administrative body in arriving at its decision has before it at no stage any form of lis and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at any time to act judicially." There are innumerable decisions of this court where it issued a writ of certiorari to quash a quasi-judicial act of an administrative tribunal or authority. This court set aside the order of the Andhra Pradesh State Government approving the order of nationalization of road transport made by the Andhra Pradesh Road Transport undertaking in Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not revise any order under this sub-section if-- (a) where an appeal against the order lies to the Appellate Assistant Commissioner or to the Appellate Tribunal but has not been made, the time within which such appeal may be made has not expired, or, in the case of an appeal to the Appellate Tribunal, the assessee has not waived his right of appeal, or (b) where an appeal against the order has been made to the Appellate Assistant Commissioner, the appeal is pending before the Appellate Assistant Commissioner, or (c) the order has been made the subject of an appeal to the Appellate Tribunal : Provided further that an order by the Commissioner declining to interfere shall be deemed not to be an order prejudicial to the assessee. " Under this sub-section an assessee may apply to the Commissioner for revision of an order under the Act by an authority subordinate to him. Such application shall be filed within one year from the date of the order or within such further period as the Commissioner may think fit to allow. On receipt of such an application the Commissioner may call for the record of the proceeding in which such order was made and make such enquiry or cause such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, as a matter of convenience, a practice has grown up under which the Commissioner has been invited to act of his own motion, under the section, and where this occurs a certain degree of formality has been adopted. But the language of the section does not support the contention, which lies at the root of the third question and is vital to the respondent's case, that it affords a claim to relief." Continuing the same idea, the Board observed : " The Commissioner may act under section 33 with or without the invitation of the assessee ; if he does so without invitation, it is clear that, if he does nothing to worsen the position of the assessee, the latter can acquire no right ; the review may be a purely departmental matter of which the assessee knows nothing. If, on the other hand, the Commissioner acts at the invitation of the assessee and again does nothing to worsen his position, there is no justification for giving him a new right of appeal. " These observations were made in the context of a question whether a reference would lie to the High Court against an order of the Commissioner. But the question whether the order of the Commissioner under section 33 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Constitution for the issue of a writ of mandamus or other appropriate direction to the Income-tax Officer to discharge his statutory duty. We, therefore, reject the preliminary objection of the respondents. The High Court mainly dismissed the writ petition on the ground that the affidavit filed in support of the writ petition was highly unsatisfactory and that on the basis of such an affidavit it was not possible to entertain the petition. In exercise of the powers conferred by article 225 of the Constitution and of other powers enabling it in that behalf the High Court of Allahabad framed the Rules of Court. Chapter XXII thereof deals with the procedure to be followed in respect of a proceeding under article 226 of the Constitution other than a writ in the nature of habeas corpus. The relevant rule is sub-rule (2) of rule 1 of Chapter XXII, which reads : " The application shall set out concisely in numbered paragraphs the facts upon which the applicant relies and the grounds upon which the court is asked to issue a direction, order or writ, and shall conclude with a prayer stating clearly, so far as circumstances permit, the exact nature of the relief sought. The appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the appellant's knowledge. He swore in the affidavit that the documents annexed to the affidavit were true copies of public documents. If they are certified copies of public documents, they prove themselves ; if they are originals of the orders sent to the appellant, the deponent, as his agent, speaks to their receipt. It is, therefore, not correct to say that the facts stated in the affidavit are not based on the deponent's knowledge. The other facts alleged in the affidavit are only introductory in nature and if they are excluded, the result will not be affected. That apart, if the affidavit was defective in any manner the High Court, instead of dismissing the petition in limine, should have given the appellant a reasonable opportunity to file a better affidavit complying with the provisions of rule 1 of Chapter XXII of the Rules. We cannot, therefore, agree with the High Court that the petition was liable to be dismissed in limine in view of the alleged defects in the affidavit. Nor can we agree with the High Court that the facts given in the affidavit are incomplete and confused. On the other hand, a careful perusal of the affidavit, along with the documents annexed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assistant Commissioner, the Commissioner can revise that order under section 33A of the Act. In the present case, pursuant to the directions of the Tribunal, Delhi Bench, the Income-tax Officer determined the assessee's capital gains under section 12B of the Act ; but the Income-tax Officer did not make any order under section 23(3) of the Act, nor did he issue a regular notice of demand as prescribed under section 29 of the Act. The result was, no appeal lay against the computation made by the Income-tax Officer to the Appellate Assistant Commissioner. Indeed, on March 8, 1957, the Appellate Assistant Commissioner rejected the appeal filed by the appellant as being not maintainable, As no appeal lay to the Appellate Assistant Commissioner against the calculations made by the Income-tax Officer, the Commissioner had certainly power to revise the said order. On March 5, 1956, the appellant filed an application requesting the Income-tax Officer to issue a notice of demand as required by section 29 of the Act. But the said officer declined to issue the notice of demand. The question is whether he was bound to issue a notice of demand under section 29 of the Act. Section 29 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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