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1969 Supreme(Cal) 239
HIGH COURT OF CALCUTTA
K. L. RAY
SRIMATI SUNITI DEVI JAIPURIA - Appellant
Versus
INCOME-TAX OFFICER, "A" WARD - Respondent
Matter 537 Of 1967
Decided On : SEPTEMBER 17, 1969
D.GUPTA, D.PAL
Delay in presenting a writ petition is not a bar to the petitioner obtaining relief by way of prohibition or certiorari against orders either in excess of jurisdiction or in exercise of erroneous jurisdiction.
Headnote:
INCOME TAX - REASSESSMENT - JURISDICTION - RETURN FILED BEFORE INCOME TAX OFFICER, REFUND CIRCLE - VALIDITY - DELAY IN FILING WRIT PETITION - WRIT OF PROHIBITION - JURISDICTION - EXCESS OF JURISDICTION - ERROR APPARENT ON THE RECORD - DELAY NOT MATERIAL.
Fact of the Case:
The petitioner filed her return for the assessment year 1956-57 before the Income Tax Officer, Refund Circle, Calcutta, on March 29, 1961. The Income Tax Officer, Central Circle XI, served a notice under Section 148 of the Income Tax Act, 1961, on the petitioner on June 6, 1963, requiring her to submit her return for the assessment year 1956-57. The petitioner challenged the validity of the notice. The Income Tax Officer, Refund Circle, had jurisdiction over cases which resulted in refund. The petitioner's income tax file was transferred from one Income Tax Officer to another without any intimation to the petitioner. The petitioner filed a writ petition on September 5, 1967, challenging the impugned notice and seeking a writ of certiorari to quash the notice and a writ of prohibition restraining the respondents from taking any further steps in respect of the impugned notice.
Finding of the Court:
The court held that the return filed by the petitioner before the Income Tax Officer, Refund Circle, was a valid return. The Income Tax Officer, Central Circle XI, had no jurisdiction to issue the impugned notice under Section 148 of the Income Tax Act, 1961, as the petitioner had already filed a valid return for the assessment year 1956-57. The court further held that the delay in filing the writ petition was not a bar to the petitioner obtaining relief by way of prohibition or certiorari against orders either in excess of jurisdiction or in exercise of erroneous jurisdiction.
Issues: 1. Whether the return filed by the petitioner before the Income Tax Officer, Refund Circle, was a valid return? 2. Whether the Income Tax Officer, Central Circle XI, had jurisdiction to issue the impugned notice under Section 148 of the Income Tax Act, 1961? 3. Whether the delay in filing the writ petition was a bar to the petitioner obtaining relief by way of prohibition or certiorari?
Ratio Decidendi: 1. The Income Tax Officer, Refund Circle, had jurisdiction over cases which resulted in refund. The petitioner's income tax file was transferred from one Income Tax Officer to another without any intimation to the petitioner. The petitioner filed a return before the Income Tax Officer, Refund Circle, on March 29, 1961. The return filed by the petitioner was a valid return. 2. The Income Tax Officer, Central Circle XI, had no jurisdiction to issue the impugned notice under Section 148 of the Income Tax Act, 1961, as the petitioner had already filed a valid return for the assessment year 1956-57. 3. Delay in presenting the petition would not bar the petitioner from obtaining relief by way of prohibition or certiorari against orders either in excess of jurisdiction or in exercise of erroneous jurisdiction.
Final Decision: The rule was made absolute in terms of prayers (a) and (c). There was no order as to costs.
( 1 ) THIS is one more application under Article 226 of the Constitution for a writ in the nature of certiorari for quashing a notice under Section 148 of the Income-tax Act, 1961, served on the petitioner and all proceedings taken thereunder and also for a writ in the nature of prohibition restraining the respondents from taking any further steps in respect of the impugned notice and for other ancillary reliefs. The petitioner is Srimati Suniti Devi Jaipuria and the respondents are, (1) the Income-tax Officer, Central Circle XI, (2) the Income-tax Officer, Refund Circle, Calcutta, (3) the Income-tax Officer, " C " Ward, District II{2), Calcutta, (4) the Income-tax Officer, " B " Ward, District VI, Calcutta, (5) the Commissioner of Income-tax, Central, Calcutta, (6) the Commissioner of Income-tax, West Bengal-I and (7) the Union of India. As the facts narrated and/or alleged in the petition as also the replies therefor in the affidavits-in-opposition would be material for the purpose of considering one of the contentions raised by learned counsel for the department, it would be necessary to set out the facts in some detail. The petitioner had income from dividends and in respect of the assessment year prior to the year 1956-57, the petitioner used to file her returns with the Income-tax Officer, Refund Circle, Calcutta, in order to claim refund of excess tax deducted at source and her general index register number in that circle was No. RC/ II (I)/235-J. For the assessment year 1956-57, for which the corresponding accounting year was 2013 S. Y. , the petitioner filed her return before the said Income-tax Officer, Refund Circle, the second respondent herein, on the 29th March, 1561, i. e. , only two days before the time to file a return expire^. Apparently, no order was passed on this return by the second respondent. A notice purported to be under Section 148 of the Income-tax Act, 1961, dated the 6th June, 1963, requiring the petitioner to submit her return for the assessment year 1956-57, as the Income-tax Officer was of the opinion that her income for that year had escaped assessment, was served on the petitioner by the third respondent, the Income-tax Officer, " C " Ward, District 11 (2), Calcutta, the income-tax file of the petitioner having been transferred to the said officer some time in July, 1961, without any intimation to the petitioner. By her advocate's letter dated the 6th July, 1961, the petitioner challenged the validity and/or legality of the said notice. Thereafter, some time in the year 1964, the petitioner's income-tax file was again transferred to the Income-tax Officer, " B " Ward, District VI, Calcutta, being respondent No. 4 herein, but again no intimation of such transfer was given to the petitioner. The petitioner through her advocate demanded of the said respondent No. 4 to supply her with materials or reasons which had led the Income-tax Officer to believe that her income had escaped assessment. On or about the 28th August, 1964, the said respondent No. 4 refused to disclose or communicate the alleged reasons as amended. Thereafter, some time in the year 1966, the petitioner's assessment file was transferred back to the Income-tax Officer, Central Circle XI, the respondent No. I again without any intimation of such change to the petitioner. Having been aware of the last transfer the petitioner through her advocate's letter dated the 20/27th September, 1966, again challenged the jurisdiction of the said respondent No. 1 to initiate the assessment proceedings under Section 148 and pointed out that the return already filed by the assessee might be treated as her return in compliance with the aforesaid notice. It was also recorded that the aforesaid submission was under protest and without prejudice to the petitioner's contentions. Thereafter, the respondent No. 1 issued the usual notice under Section 142 (1) of the Act on the 16th May, 1967, which was duly complied with by the petitioner
