The court ordinarily does not allow an assessee to invoke its writ jurisdiction ignoring or by passing the departmental hierarchy, when his plea of law is not based on admitted or established facts on the record and when the assessing authorities have not had an opportunity of pronouncing their opinion on the relevant facts.

JINDRA LAL, J.

1. The points involved in this petition are of considerable importance and not free from difficulty. The amount involved is substantial and the party aggrieved by any decision given by me is likely to go up in appeal in Letters Patent. Some of the points involved are such as could have fairly come up to this court on a reference under section 66 of the Income-tax Act and dealt with by a Division Bench.

2. In view of this, I am of the opinion that this petition should be heard by a larger Bench. Let the papers of this case be placed before my Lord the Chief Justice for constituting a larger Bench to hear this petition. Parties are keen to have the matter decided expeditiously.

3. Mr. Awasthy, learned counsel for the respondents, contends that the petitioners in the garb of elaborating their arguments are really introducing and urging new points and making out a new case. Since the whole matter will be disposed of by a larger Bench, this question can also be urged there.

Order of Division Bench

I.D.DUA, J.

4 This petition under articles 226 and 227 of the Constitution at the instance of four brothers was admitted by a Bench of this court on March 12, 1964, with a direction that it should be set down for hearing before the vacation. It was heard by Jindra Lal J. who on September 11, 1964, referred the case to a larger Bench on the ground that the points involved were of considerable importance and not free from difficulty, the amount involved being also substantial. It may be pointed out that in September 7, 1964, Jindra Lal J., after hearing arguments for nearly two hours, was informed by the learned counsel for the revenue that some of the points urged on behalf of the petitioners had not been taken in the petition. This was controverted on behalf of the petitioners and it was submitted by their counsel that all the points were actually taken in the petition and, during the arguments, those points were merely being elaborated. The learned single judge thereupon directed the petitioners to file an affidavit elaborating the law points to be urged on their behalf with an advance copy being given to the respondents who were at liberty to file an affidavit in reply, if so advised. It was for this reason that the case was adjourned to September 11, 1964. When the case was referred to a larger Bench, the learned counsel for the revenue again submitted that in the garb of elaborating their arguments, the petitioners were really trying to introduce and urge new points and were thus attempting to make out a new case. The learned single judge, in these circumstances, observed that this question would also be open to arguments before the larger Bench. I have considered it necessary to make this observation because at the bar a suggestion was thrown on behalf of the petitioners, who are now represented by a different counsel, that the learned single judge had allowed all these points to be raised. I will advert to this aspect at the proper stage.

5. The facts giving rise to the controversy before us, as stated in the writ petition, are that R. B. Seth Multani Mal Modi, father of the four petitioners, died on October 22, 1957. He was shareholder of Modi Spinning and Weaving Mills Co. Ltd., (hereinafter called the company) holding therein two blocks of shares. The board of directors of the company declared an interim dividend on March 5, 1956, which was confirmed by the company in its general meeting on January 17, 1957. The declaration confirmed being in two different financial years is the source of the controversy. The dividend warrants in respect thereof were dispatched by the company on June 21, 1956. The deceased did not show the said dividend amounting to Rs. 60,265 as his income in the return filed by him for the assessment year 1956-57 and instead included it in his return for the assessment of the following year 1957-58. The Income-tax Officer while making the assessment for the year 1956-57, held February 10,