JUDGEMENT
P.N.BHAGWATI, J. -
(1.)ONE Babarbhai Hirabhai Patel (hereinafter referred to as the deceased Babarbhai) was at all material times a permanent resident of Cambay which was a Native State prior to its merger with the then Province of Bombay. The deceased Babarbhai had deposited from time to time diverse sums of money with various firms which included Messrs. Das and Company of Bombay. Tax at the appropriate rate prevalent at the relevant time on the amount of interest on these deposits was deducted and paid by Messrs. Das and Company and other firms on behalf of the deceased under section 18(3A) of the Income -tax Act, 1922. Since the deceased has no other income in British India apart from the amount of interest on these deposits, he was not assessed to tax by the British Indian authorities until the merger of Cambay with then Province of Bombay. Subsequent to the merger, some inquiry was made by the Additional Income -tax Officer, Petlad Circle, Petlad, and pursuant to the inquiry, the deceased appeared before the Additional Income -tax Officer, Petlad Circle, Petlad, and made a statement giving various explanations regarding investments made by him from time to time. The deceased disclosed in this statement that he had three sons, namely, the petitioner, Punjabhai and Nanubhai, and he also gave full particulars about their activities. This inquiry was with regard to the assessment years 1949 -50 to 1953 -54 and in view of the explanation given by the deceased, it was closed and no further proceedings were taken. However, so far as the assessment year 1954 -55 is concerned, the Income -tax Officer, Ward -B, Petlad, issued a notice dated 25th June, 1954, under section 22(2) requiring the deceased to submit a return of income and pursuant to the notice the deceased filed a return of income on or about 13th August, 1954. The Income -tax Officer, Ward -B, Petlad, by an order dated 28th June, 1955, assessed the deceased in the status of Hindu undivided family on a total income of Rs. 700 and since that was within the limits of exemption, no tax was determined to be payable by the Hindu undivided family. The deceased, thereafter, died at Cambay on 8th September, 1956, leaving him surviving his three sons, namely, the petitioner, Punjabhai and Nanubhai. Subsequent to the death of the deceased, the assessment of Messrs. Das and Company for the assessment years 1941 -42 to 1951 -52 were reopened by the Income -tax Officer, Central section, Bombay, and in the course of the reassessment proceedings, a statement of the petitioner was taken at cambay on 10th January, 1961, and this statement was subsequently explained and elaborated by the petitioner by an affidavit dated 30th March, 1961. The record of the petition does not show what course the reassessment proceedings of Messrs. Das and Company followed but it is clear from an averment made in the petition which is not denied in the affidavity -in -reply that the reassessment proceedings were ultimately compromised between messrs. Das and Company and the Central Board of Revenue on 29th May, 1962. The income -tax department, in the meantime, probably with a view to making a reassessment, started taking steps against the petitioner in respect of the deposits with messrs. Das and Company and on the 16th March, 1962, a letter dated 6th March, 1962, was pasted by the process -server of the income -tax department on the outer -door of the house of the petitioner. This letter was addressed by the Income -tax Officer, Ward -B, Petlad, to 'Shri Marghabhai Babarbhai Patel', and the petitioner was called upon to show cause why action under section 34(1) (a) should not be initiated for the assessment years 1941 -42 to 1951 -52, since there were substantial credits 'in your account' in the books of Shri Bhogilal H Patel of Messrs. Das and Company. The petitioner was not in Cambay at that time and his minor son, therefore, addressed a letter dated 20th March, 1962, to the Income -tax Officer, Ward -B Petlad, and pointed out that the petitioner had gone out of town and he did not know for certain when the petitioner would return and time should, therefore, be granted for about 15 -20 days. The Income -tax Officer, Ward -B, Petlad, was obviously not in a position to give such a long time and he, therefore, issued twelve notices dated 24th March, 1962, under section 34 for reopening the assessments in respect of the assessment years 1941 -42 to 1951 -52. These notices were in identical language and they were addressed to 'Shri Marghabhai Babarbhai Patel, UNDEL.' These notices were served on the petitioner by affixing them on the outerdoor of the house of the petitioner on 27th March, 1962. When the notices were served, the petitioner was admittedly out of Cambay and he returned to Cambay some time before 30th April, 1962. The petitioner, on perusing the notices, addressed a letter dated 30th April, 1962, to the Income -tax Officer, Ward B, Petlad, challenging in jurisdiction of the income -tax Officer to issue the notices and pointing out various facts and circumstances which, according to the petitioner, showed that the notices were not justified. The income -tax Officer by his letter dated 5th June, 1962, replied to the petitioner asserting that the action started against the petitioner under section 34(1) (a) was quite proper and legal and he also pointed out to the petitioner that certain copies of accounts were not enclosed with the petitioner's letter dated 30th April, 1962, as stated in that letter. The petitioner, accordingly, forwarded copies of these accounts to the Income -tax Officer. No steps were, however, taken by the Income -tax Officer for proceeding further with these assessment proceedings and a period of about two years elapsed. The Income -tax Officer suddenly woke up again on 28th April, 1964, and addressed a letter to the petitioner enclosing a notice under section 22(4), since no returns had been filed by the petitioner pursuant to the notices under section 34(1) (a). The letter as well as the notice were addressed to 'Shri Marghabhai Babarbhai, legal heir to Babarbhai Hirabhai Patel, Valandvado, Cambay'. The petitioner by his letter dated 12th May, 1964, made derailed submissions explaining all the deposits and investments of the decaesed and pointing out that there was no justification at all for initiating proceedings under section 34(1). This letter to the Income -tax Officer was followed by two letters, addressed to the Inspecting Assistant, Commissioner, one dated 12th May, 1964, and the other dated 14th May, 1964. The Inspecting Assistant Commissioner by his reply 20th May 1964, acknowledged receipt of the petitioners letter dated 20th May, 1964, and 14th May 1964, and informed the petitioner that the matter was receiving attention. The petitioner, accordingly, waited but it became clear form two notice under section 22(4) one dated 23rd February, 1965, and the other dated 12th April, 1965, issued by the Income -tax Officer that he was determined to proceed against the petitioner, and the petitioner, therefore, filed the present petition challenging the validity of the notices issued under section 34(1) (a) as also of the proceedings commenced by issue of such notices.
(2.)BEFORE we set out the grounds of challenge urged on behalf of the petitioner, it would be convenient at this stage to deal with the preliminary objection urged by the learned Advocate -General on behalf of the revenue. the learned Advocate -General contended that the notices under section 34(1) (a) impugned in the petition were issued as far back as 24th March, 1962, while the petition was filed on 8th July, 1965, more than three years after the date of the impugned notices and there was, therefore, gross delay on the part of the petitioner in approaching the court and the petition should, therefore, be dismissed in limine without going into the merits. Now while it is true as a general proposition that when the court is exercising its extraordinary jurisdiction under article 226 of the Constitution, delay is a factor which has to be taken into account in deciding whether the discretion of the court should be exercised against the petitioner, there is no hard and fast delay must necessarily in all cases result in the dismissal of the petition. The discretion and its exercise must always depend on the facts and circumstances of each case. We must, therefore, examine the facts of the present case for the purpose of seeing whether the delay on the part of the petitioner is of such a character that we should in the exercise of our discretion refuse to grant relief to the petitioner even if his claim is otherwise found to be well merited. The impugned notices were served on the petitioner on 27th March, 1962, by affixation on the outer door of his residence. The petitioner was admittedly at that time out of Cambay. He returned to Cambay some time before 30th April, 1962, and immediately addressed the letter dated 30th April 1962, to the Income -tax officer protesting against the issue of the impugned notice. It is true that in his reply dated 5th June, 1962, the Income -tax officer asserted that the action initiated against the petitioner under section 34(1) (a) was quite proper and legal but after copies of accounts referred to in his reply were forwarded by the petitioner to the Income -tax Officer, the Income -tax Officer did not adopt any further steps in pursuance of the impugned notice for a period of about two years. The petitioner was, therefore, justified in assuming that the Income -tax Officer had dropped the proceedings initiated against the petitioner. It is common knowledge that ordinarily when notices under section 34 are issued by the income -tax department, they are promptly followed up by various steps required to complete the assessment proceedings and, therefore, in the present case, where no steps taken by the Income -tax Officer for a period of about two years, it would not be unreasonable on the part of the petitioner to assume that no further proceedings were intended to be taken against him more particularly since the reassessment proceedings of Messrs. Das and Company were compromised on or about 28th May, 1962. The notice under section 22(4) served on the petitioner along with the letter dated 28th April, 1964, no doubt conveyed to the petitioner that the Income -tax Officer proposed to proceed with the assessment proceedings, but when the petitioner represented his case to the Inspecting Assistant Commissioner by his letter dated 12th May, 1964, and 14th May, 1964, the Inspecting Assistant Commissioner intimated to the petitioner that the matter was receiving attention. The petitioner was, therefore, justified in waiting for further Communication from the Inspecting Assistant Commissioner and he could not be said to have acted unreasonably in not immediately rushing to the court. It may be noted that when the petitioner was, thereafter, once again served with notices dated 23rd February, 1965, and 12th April, 1965, under section 22(4) which clearly showed that the Income -tax Officer had decided to proceed further against him, he immediately filed the present petition. It is, therefore, not possible to say that the delay on the part of the petitioner in the present case was unreasonable so as to merit dismissal of the petition in limine. It is clear from the record that the petitioner did not sleep over his rights. He throughout maintained that the impugned notices were without jurisdiction and the Income -tax Officer had no justification to issue them.
Moreover, the delay on his part in filing the petition has not in any way resulted in any prejudice to the revenue. It is not as if the petitioner has allowed the reassessment proceedings to go on and come to the court at a late of those proceedings. The petition has actually been filed as soon as the Income -tax Officer indicated that he is proceedings further under the impugned notices. It is, therefore, not possible to throw out the petition on the ground of delay or laches.
(3.)BUT apart from this answer on facts, there is another answer to the preliminary objection which is in our view unassailable. It is no doubt true that the petitioner seeks to have the impugned notices quashed and set aside and in so far as that relief is concerned, it might be said that there is delay on the part of the petitioner since the petition has been filed more than three years after the date of issue of the impugned notices. But it may be noted that the petitioner has also claimed in the petition a writ of prohibition against the continuance of reassessment proceedings pursuant to the impugned notices. If the contention of the petitioner is right, the reassessment proceedings would be without jurisdiction and the court can certainly issue a writ of prohibition prohibiting the Income -tax Officer from proceeding further with the reassessment proceedings. So far as this relief is concerned, there is no question of any delay since, as pointed out above, the reassessment proceedings have not yet gone beyond the stage of issue of notices under section 22(4). Moreover, it is now well -settled that where there is patent lack of jurisdiction, a writ of prohibition must go almost as of course and it cannot be defeated by considerations which would otherwise be relevant to the question of exercise of discretion of the court. It was pointed out by Venkatarama Ayyar J. in Bengal Immunity Co. v. State of Bihar.
'Writ of prohibition is issued whenever a subordinate court or tribunal usurps jurisdiction which dose not belong to it, and when that has been shown, the issue of the writ, though not of course, is of right and not discretionary.'