A writ petition is not maintainable if it is filed with unexplained delay and the petitioner has an equally efficacious alternative remedy.

A.P. Sen, J.-This is a petition by the official liquidator acting for the Bharatpur Oil Mills (P.) Ltd. (In liquidation) for the issue of a writ of certiorari, prohibition or other appropriate writ, direction or order under Article 226 of the Constitution, by which the petitioner challenges the validity of a notice dated September 27, 1972, issued by the ITO, “A” Ward, Kota, under Section 148 of the I.T. Act, 1961.

2. During the assessment year 1966-67, the previous year of which corresponded to the year ended on March 31, 1966, the official liquidator effected sales of capital assets of the company in liquidation, i.e., machinery, plants, etc., on August 5/6, 1965, under the order of the High Court for a sum of Rs, 6,35,000. It appears that one-fourth of the auction price was deposited on August 9, 1965, and the company accepted the bid on August 18, 1965. In December, 1965, the official liquidator sold a truck and a tank for Rs. 3,275 and Rs. 1,100, respectively. The ITO, Companies Circle I, Jaipur, having come to know about the transfer of the capital assets of the company, issued a notice dated July 24/25, 1967, under Section 148, with a view to bring to tax in the hands of the assessee the income derived therefrom, requiring the official liquidator to file a return of the said income. In pursuance of the aforesaid notice, the official liquidator filed a return dated October 4, 1967, on October 7, 1967. In the section regarding capital gains, the income was shown as “nil”, although along with the return certain documents were filed giving details of the transfers effected by him as per “annexs. Ito

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3. The assessee raised a preliminary objection to the jurisdiction, of the ITO to issue a notice under Section 148 of the Act, on the ground that no such notice could be issued without the leave of the Court as required by Section 446 of the Companies Act. The objection was based on the decision of a learned single judge of the Bombay High Court in Colaba Land and Mills Co. Ltd. (In liquidation), In re [1968] 67 ITR 399 (Bom). In view of that decision, the C.B.R. issued a circular that no proceedings under Section 148 of the Act should be taken without obtaining the requisite leave of the Court under Section 446. In consequence thereof , the ITO dropped the proceedings under Section 147 of the Act on September 19, 1969.

4. The decision of the single judge in Colaba Land and Mills Co. Ltd., In re [1968] 67 ITR 399 (Bom) was, however, reversed by a Division Bench of the Bombay High Court in Colaba Land and Mills Co. Ltd., In re [1970] 78 ITR 584 (Bom). Their Lordships of the Supreme Court have confirmed the decision of the Division Bench in Kondaskar (S. V.), Offi. Liq., Cobala Land and Mills Co. Ltd. vs. Deshpande (V. M.), ITO [1972] 83 ITR 685 (SC).

5. In view of the decision of the Supreme Court in [1972] 83 ITR 685, the ITO, “A” Ward, Kota, issued the impugned notice dated September 27, 1972, under Section 148. The notice under Section 148, annex. “E”, states that the ITO had reason to believe that income chargeable to tax for the assessment year 1966-67 had escaped assessment within the meaning of Section 147 of the Act and required the assessee to file a return.

6. The validity of the notice is challenged on the ground, firstly, that there was initial lack of jurisdiction on the part of the ITO inasmuch as the return dated October 4, 1967, filed by the assessee, in response to the first notice dated July 24/25, 1967, issued under Section 148, could, not be ignored, and the assessment should, therefore, have been completed within the period of 4 years as required under Section 153(1)(a) and the second notice dated September 27, 1972, issued under Section 144 was nothing but a device to get over the bar of limitation, and secondly, that the conditions pre-requisite for the issue of a notice under Section 147(a) were not in existence. It was said that, in the present case, the assessee had filed a return and, theref