VINOD KUMAR DIDWANIA Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THE writ petition is for a certiorarified mandamus to call for the records of the first respondent, in assessment order PAN-47/005-PT-5341/81-82, dated October 10, 1984, and quash the same and direct the respondents to dispose of the case of the petitioner in accordance with law and render justice.

(2.) PENDING the writ petition, the writ miscellaneous petitions were taken up for the stay of the operation of the said order. Though in an interlocutory proceeding detailed orders are not desirable as it is likely to affect the parties in the final disposal of the writ petition, I have heard very elaborate arguments from Mr. V. P. Raman, learned counsel appearing for the petitioner, and Mrs. Nalini Chidambaram, learned counsel appearing for the Income-tax Department.

(3.) BE that so. The first objection is that this court should not entertain this petition under article 226 of the Constitution of India. Even if it is a question of limitation, when there is adequate remedy available to the petitioner under the Act, which remedy has been availed of by the petitioner himself admittedly, it is not open to him to come before this court under article 226 of the Constitution. In support of this submission, reliance was placed On C. A. Abraham v. lTO , Shivrarn Poddar v. ITO , Gita Devi Agarwal v. CIT , Champalal Binani v. CIT , Singam Chetty Ateendrooloo Chetty Charities v. Addl. CIT [1972] 86 ITR 262 (Mad), Isha BEevi v. TRO [1975] 101 ITR 449 (SC) and Titahugr paper Mills Co. Ltd. v. State of Orissa . The further submission of the learned counsel for the Department is that this is a case to which section 153(1)(b) would apply. If that be so, there is a period of 8 years for assessment. The impugned order clearly shows that the petitioner had concealed income and, therefore, to such a case, clause (c) of section 271(1) would apply. At no point of time, the petitioner ever co-operated with the assessment proceedings. Merely because, he has filed a "nil" return, he is not absolved of the liability under section 271(1)(c). This is the interpretation placed by the Madras High Court on the corresponding provisions of the old Income-tax Act in T. B. Hanuantharaj v. CIT [1978] 111 ITR 414 (Mad). The Allahabad High Court has also taken the same view in Mir Suba Hari Bhaka v. ITO [1960] 39 ITR 617. The ratio of these judgments would squarely apply.