- (1.) THIS is a writ petition under Art. 226 of the Constitution. The relief claimed is for the issue of a writ in the nature of mandamus requiring the Tribunal to consider the ground of computation of standard profits as was raised in the excess profit tax appeals but which inadvertently remained undisposed of. The facts leading up to this petition are these :
(2.) THE petitioner was assessed to excess profits tax for the chargeable accounting periods ending on March 31, 1945, and March 31, 1946, by two assessment orders dated August 26, 1949. According to the said assessment the petitioner was assessed to excess profits tax to the tune of Rs. 1,06,181.5 and Rs. 48,978 for the above chargeable accounting periods respectively. In the excess profits tax assessment order, according to the petitioner, the EPTO had failed to make adjustments for capital variation in the standard period and the chargeable accounting periods as required by S. 6 of the EPTO, 1940, r/w r. 5, Schedule II to the Act. Being aggrieved by the order, the petitioner filed appeals before the AAC in respect of each of the relevant chargeable accounting periods and those appeals were disposed of by the AAC. Before the said appeals were heard, the petitioner filed a specific ground in respect of adjustment of standard profits due to the increase or decrease of the capital in the chargeable accounting periods. This ground was considered but rejected by the AAC. Thereafter, an appeal was preferred before the Tribunal, Allahabad Bench, at Allahabad, and the following specific grounds of appeal was taken : "Because the learned EPTO and the AAC have erred in not allowing to the assessee proper standard profits in accordance with the standard period subject to the adjustment on account of the increase and decrease of capital in the relevant chargeable accounting period, the view of the ITO is wrong and untenable. The appellant was always prepared to file his computation of average capital. The lower Court is not justified in refusing to give the benefit to the assessee on this account."
(3.) THE petitioner states on affidavit that the aforesaid ground was argued in his presence by his counsel before the Tribunal. These excess profits tax appeals were heard along with the income-tax appeals and the Tribunal, as is clear from the opening paragraph of the consolidated judgment, treated the excess profits tax appeals as merely consequential. The Tribunal again observed : "The excess profits tax appeals being consequential and the grounds in both these appeals being common, they are disposed of by this common order." ;