GITA DEVI AGGARWAL Vs. COMMISSIONER OF INCOME TAX WEST BENGAL AND OHERS

JUDGEMENT

(1.) The appellant (hereinafter referred to as " the assessee") was married in the year 1961 and after the marriage she started business in hessian and silver speculation under the name and style of "Union Trading Co " at premises No. 28, J. N. Mukherjee Road, Howrah. On or about 3.03.1961, the assessee submitted voluntarily returns of income for the assessment years 1953-54 to 1960-61 to the Income-tax Officer D-Ward, Howrah. On 18.03.1961, the Income-tax Officer made assessment orders for the aforesaid assessment years under the provisions of the Income-tax Act, 1922 (hereinafter referred to as "the Act"). On 25.02.1963, respondent No. 1 issued a notice to the assessee under section 33B of the Act for cancelling the assessments and 6.03.1963, was fixed as the date of hearing. On the date of hearing no one I behalf of the assessee and an order was made by the respondent in exercise of the powers conferred under section 33B of the Act cancelling the said assessment orders and directing the Income-tax Officer to make fresh assessments according to law. Being aggrieved by this order the appellant moved the High court under article 226 of the Constitution for the grant of a writ. It was alleged that no notice was issued in connection with the proceedings under section 33B of the Act and no opportunity was given to the appellant for being heard before making the order. A rule nisi was issued by B. E. Banerjee J. on 20.07.1963, which was made absolute by his order dated 21.07.1964. An appeal was taken by the respondents to the division bench of the Calcutta High court consisting of the chief justice and B. C. Mitra J. The appeal was allowed by the division bench on the ground that due opportunity was given to the assessee for being heard and the order of respondent No. 1 reopening the assessment under section 33B of the Act was not defective in law. This appeal is brought by certificate from the Judgement of the High court dated 24.05.1965.

(2.) The first question that arises in this appeal is whether the appellant is entitled to invoke the special jurisdiction of the High court under article 226 of the constitution. Under section 33B, Ss. (3), of the Act, a right of appeal was available to the appellant and would have been more appropriate, because questions of fact regarding the service of the notice were involved and such questions could have been properly decided in the proceeding of the appeal. 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 for issue of a prerogative writ. It is true that the existence of an alternative remedy does not affect the jurisdiction of the court to issue a writ; but, as observed by this court in Rashid Ahmed V/s. Municipal Board Kairana the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such a remedy exists, it will be a sound exercise of discretion for the High court to refuse to entertain a petition under article 226 unless there are good grounds therefor.

(3.) The legal position has been clearly stated by Shah J., speaking for the court, in Shivram Poddar V/s. Income-tax Officer: