- (1.) THE main goround for asking for a review is that two material facts were not disclosed by the assessee and as such he had disented himself to the exercise of the extraordinary writ juris diction of this court in hais favour. The original writ petitions was directed against the notice of demand dated the 17th of March, 1956, and 25th of August, 1958.
(2.) THE assesse was a partber in the partbership firm carrying on business in the name and style Mumma Lal and sons, Kanpur. The petitioner assessment of that year the share of profit of the petitioner in the aforesaid firm, including interest, was comput ed at Rs. 88,809 : vide assessment foder, dated the 17th of March, 1955, and on the basis of that order the Income -tax Officer computed the tax paysble at Rs. 39,364.90. the notice of demand issued was dated the 17th March, 1955, requiring payment on or before the 28th March, 1955. On the 17th March, 1955, an individual return of income was filed by the assessee before the income -tax Officer on the basis of which the Income -tax Officer issued a notice under section 23(2) of the Act of 1922 (hereinaf ter referred to as the Act) and fixed the hearing on the same date and also passed an assessment order on that date determining the assessees total income at Rs. 88,809. According to the petitioner he had no knowledge of the notice of demand having been served on any one on his behalf till the 20th September, 1961, when the file was inspected and it was discovered that the notice of demand was served on one Mr. P. Dayal on the 30th March, 1955. The inspection of the records, according to the assessee, had further show that a sum of Rs. 1,000 was paid towards the aforesaid demand on the 1st August, 1955. It further appeared that on the 8th March, 1956, the Income -tax Officer had imposed a penalty of Rs. 1,900 under section 46(1) of the Act, for the alleged default in payment of tax. The order imposing penalty of Rs. 1,900, however, was not filed along with the writ petition. Against that penalty order an appeal was filed. The petitioner did not, however, file any appeal under section 30 of the Act against the assessment order passed on him for the assessment year 1950 -51. In the affidavit accompanyuing the original petition it was stated that the first recovery certificate to the Collector of Kanpur Under section 46(2) of the Act for the recovery of sum of Rs. 40,264.90 which included the aforesaid penalty of Rs. 1,900, was issued on 24th December, 1956. According to the petitioner as the demand notice was only served on the 30th March, 1955, recovery proceedings ought to have been taken on or before the 30th March, 1956, and therefore they were barred under the provisions of section 46, sub -clause (7), of the act. The petitioner, no doubt, had taken this stand before the Income -tax Officer, Kanpuro, and the Income -tax Officer, Dehra Dun. to whom the proceedings were subsequently transpferred and also before the commissioner of Income -tax Lucknow, and the collector, Dehra Dun The assessee, however, did not place all his cards on the table nor was the department vigilant enough to place the correct facts before this court at the time when the writ petition came to be argued. On the materials on records the recovery proceedings were prima facie barred by time, they having been taken for the first time on the 24th December, 1956, and it having been noticed that the counter -affidavit filed by the department had made no effort to meet the point of limitation, this court considered that there was no alternative but to issue a writ of certiorari quashing the recovery proceedings taken on the 24th December, 1956, and fortiori the subsequent recovery proceedings dated the 25th August 1958. This court, further, without having given a finding as to whether the notice of demand was validly served, had quashed the notice of demand dated the 17th March, 1955. That was not at all necessary when the recovery proceedings themselves were quashed. It is the quashing of the recovery proceedings and the demand notice which is required to be reviewed by the present application
(3.) PRELIMINARY objections have been taken to the maintainability of the review application on the ground that no review lies against an order passed under article 226 of the Constitution in respect of a matter which does not fall within the civil jurisdiction of this court. Reliance for this proposition by Mr. Pachauri, the learned cousel for the assessee, had been placed on three decision of this court. The first of these decisions is the case of Dan Singh of Dun Singh Bist v. Additional Collector, Bijnor. James J. had held that there was no provision in the Constitution debarring the Hight Court from exercising a power of review; that if such power is found derived from some other statute a High Court will be entitled to review its decision and orders. In that particular case as the proceedings had been started to enforce or vindicate a civil tight it was held that the proceedings were civil proceedings from which it followed that in adjudication upon them under article 226 of the Constitution, the learned judge was exercising civil jurisdiction and therefore the Civil procedure Code the provisions of section 151 gave this court ample power to undo the injustice by recalling the incorrect and invalid order which had come to be passed as a result of the ignorance of a certain notification. This case, therefore, did not rule out the exercise of the powers of review under the inherent powers which flow from the exercise of plenary jurisdiction under article 226 of the Constitution.;