- (1.) THIS Rule fails on a preliminary ground. The petitioner, Kumar Purnendu Nath Tagore, is one of the sons of Raja, Prafulla Tagore, since deceased. Raja Prafulla Nath Tagore died leaving, a will and leaving five sons, including the petitioner, him surviving. On 24th Aug., 1938, this Court granted probate of the will of Raja Prafulla Nath Tagore to his five sons who were the executors. About ten years thereafter, the executors were removed from office and the Administrator-General was appointed the administrator of the estate.
(2.) UP to the year 1948, the estate had not been assessed to income-tax for the years 1946-47, 1947-48 and 1948-49. On 30th Sept., 1950, there was, however, an assessment order made in respect of the estate on the Administrator-General for the year 1946-47. This assessment order suffered vicissitudes in successive appeals and ultimately the AAC set aside the entire assessment proceedings against the Administrator-General for the year 1946- 47. Thus ended the first chapter of activities on the part of the IT authorities to assess the estate of Raja Prafulla Nath Tagore. The second chapter began with a notice under s. 34 of the IT Act issued to "Kumar Purnendu Nath Tagore and others, Executors to the estate of Raja Prafulla Nath Tagore". Pursuant to that notice Kumar Purnendu Nath Tagore filed a return under protest. With the nature of the protest I am not concerned in this rule at this stage for reasons which I shall presently state. Notwithstanding the protest, there was an assessment made on the basis of the aforesaid notice. That order of assessment was made on 24th Feb., 1956. Against that order of assessment Kumar Purnendu Nath Tagore filed an appeal before the AAC. Admittedly, the said appeal is pending. During the pendency of the appeal, the petitioner, Purnendu Nath Tagore, moved this Court and obtained the present rule, under Art. 226 of the Constitution, challenging the assessment, as also the certificate proceedings started on the basis thereof.
(3.) MR. Balai Lal Pal, the learned advocate for the respondents IT authorities, contended that the petitioner not only had an alternative remedy but had taken recourse to that, namely, by Day of an appeal against the order of assessment to the AAC. He was, therefore, not entitled to challenge the assessment by way of an application for a high prerogative writ during the pendency of the appeal. In my opinion, the preliminary objection, ought to be upheld. It is no doubt true that the existence of the alternative remedy is not an absolute bar to the jurisdiction of the High Court to entertain an application under Art. 226 of the Constitution. In the case of A. V. Venkateswaran vs. R. S. Wadhwani (1962) 1 SCR 753 : AIR 1961 SC 1506, Rajagopala Ayyangar J. observed : "We must, however, point out that the rule that at the party who applies for the issue of a high prerogative writ should, before he approaches the Court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which Courts have laid down for the exercise of their discretion. The law on this matter has been enunciated in several decisions of this Court but it is sufficient to refer to two cases. In Union of India vs. T. R. Varma (1958) SCR 499, Venkatarama Ayyar J. speaking for the Court said : 'It is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but, as observed by this Court in Rashid Ahmed vs. Municipal Board, Kairana (1950) SCR 566 : AIR 1950 SC 163, the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of,granting writs : vide also K. S. Rashid and Son vs. Income-tax Investgation Commission (1954) 25 ITR 167 (SC). And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Art. 226, unless there are good grounds therefor.' There is no difference between the above and the formulation by Das C. J. in State of Uttar Pradesh vs. Mohammed Nooh (1958) SCR 595." ;