Y. Narayana Chetty & ANR Vs. The
Income-Tax Officer, Nellore & Ors  INSC 101 (15 October 1958)
AIYYAR, T.L. VENKATARAMA SARKAR, A.K.
CITATION: 1959 AIR 213 1959 SCR Supl. (1) 189
CITATOR INFO :
F 1961 SC1026 (6)
Income-tax-Rule empowering Income-tax Officer
to cancel registration of firm found not be genuine-Validity ofRegistered firm,
if an assessee Seryvice of notice on firm through Partner, if valid and
proper-Writ Petition, if lies against illegal assessment Indian Income-tax Act,
1922 (XI Of 1922), SS. 23, 34-Income-tax Rules, r. 6B-Constitution of India,
Two persons, B and C, formed a partnership
firm on April 20, 1936, and the firm was dissolved on March 31, 1948. I and C
along with R formed a second firm on July 30, 1941, and it was dissolved on
March 31, 1949. B and C along with five others formed a third firm on December
1, 1941, and it was dissolved on January 1, 1949. All the three firms were
carrying on business in yarn and cloth and all of them were registered under S.
26-A of the Income-tax Act. For the years 1943-44 and 1944-45 tile said firms
were treated as separate entities and separate assessment orders were passed in
respect of the income of each one of them for the said years. Subsequently, the
Income-tax Officer served notices under S. 34 Of the Act on C on behalf of the
firms and after hearing the parties he held that the firms were fictitious and
so cancelled their registration under r. 6B of the Income-tax Rules and passed
fresh orders of assessment against them on the basis that they were
One Y who was a partner in the third firm and
C filed four writ petitions under Art. 226 of the Constitution in the High
Court challenging the validity of the orders passed.
The High Court dismissed the petitions but
granted certificates of fitness to appeal 190 under Art. 133. The appellants
contended that r. 6B was inconsistent with S. 23(4) of the Act and was ultra
vires, that consequently the cancellation of registration of the firms was
without jurisdiction and was void and that the proceedings taken under s. 34 Of
the Act were invalid as the required notice was not issued against the
individual partners who were the assesses.
Held, that r. 6B of the Income-tax Rules was
not inconsistent with S. 23(4) Of the Act and was not ultra vires. Rule 6B
dealt with cancellation of registration in cases where the certificate of
registration had been granted without there being a genuine firm in existence,
while S. 23(4) dealt with cancellation of registration on account of failure to
comply with the requirements of law, though the registered firm was genuine.
Rule 6B was obviously intended to carry out the purpose of the Act and was
valid. The fact that no appeal had been provided against an order made under r.
6B was no ground for challenging its validity. It was also not open to the
appellants to contend that the orders passed under s. 6B were invalid on the
ground that the rule did not require the giving of any notice before the cancellation
of registration as in the present case notice had actually been given and the
appellants had been afforded an opportunity of being heard.
Held, further, that in the cases of
registered firms, the firms themselves were the assessees and as such the
notices issued under S. 34 against the firms and served upon C were valid and
proper notices, :and it was not necessary to serve notices upon the individual
partners of the firms. The notice prescribed by s. 34 was not a mere procedural
requirement. If no notice was issued or if the notice issued was shown to be
invalid then the proceedings taken by the Income-tax Officer would be illegal
Commissioner of Income-tax, Bombay City v.
Ramsukh Motilal,  27 I.T.R. 54 and R. K. Das & Co. v. Commissioncy of
Income-tax, West Bengal,  30 I.T.R. 439, approved.
The contention that the assessments were
completely illogical and therefore illegal could not be urged in a petition
under Art. 226 of the Constitution since it did not raise any question of
CIVIL APPELLATE JURISDICTION: Civil Appeals
nos. 317 to 320 of 1957.
Appeal from the judgment and order dated
March 5, 1954, of the Madras High Court, in Writ Petitions Nos. 613 and 629 of
1952 and 201 and 202 of 1953.
A. V. Viswanatha Sastri and B. K. B. Naidu,
for the appellants.
191 A. N. Kripal, R. H. Dhebar and D. Gupta,
for respondent No. 1.
1958. October 15. The Judgment of the Court
was delivered by GAJENDRAGADKAR, J.-These four appeals arise from four
petitions filed against the Income-tax Officer-, Nellore Circle, Nellore,
respondent 1, in respect of the proceedings taken by him against three firms
under s. 34 of the Indian Income-tax Act (hereinafter called the Act). The firm
M/s. Bellapu Audeyya and Chilla Pitchayya was formed on April 20, 1936, and it
was dissolved on March 31, 1948. It consisted of two partners, Chilla Pitchayya
and Bellapu Audeyya.
Chilla Pitchayya had started another firm in
the name and style of G. Pitchayya & Co. with another partner R. Subba Rao.
This firm was formed on July 30, 1941, and it was dissolved on March 31, 1949.
Bellapu Audeyya and. Chilla Pitchayya had also formed another firm along with
five other partners which carried on its business in the name and style of
Prabbat Textiles. This firm was formed on December 1, 1941, and it "-as
dissolved by a decree of the civil court Passed oil December 22, 1949, the
dissolution having taken effect from January 1, 1949. All the three firms were
carrying on business in yarn and cloth and all of them were registered under s.
26A of the Act. It appears that for the purpose of assessing the income of
these firms for the years 1943-44 and 1944-45, respondent 1 was satisfied on
making enquiries that each of the three firms was a separate entity and so
separate assessment orders were passed in respect of the income of each one of
them for the said two years.
Subsequently on August 14, 1951, respondent I
issued notice against the firm of Prabliat Textiles under s.34 of the Act.
In the proceedings thus commenced, respondent
I hold that the firm of Prabhat Textiles was a fictitious term and that the
real partners ",ere C. Pitchayya and B. Audeyya. As a result of this
finding, respondent I cancelled the registration of the said firm under r. 6B
of the Income-tax Rules and passed fresh orders of assessment against the said
firm on the 192 basis that it was an unregistered firm for the assessment years
1943-44 and 1944-45 on August 14, 1952, and February 25, 1953, respectively.
Similar action was taken by respondent I in respect of the two other firms on
the same dates.
Thereupon Y. Narayana Chetty, one of the
partners of the Prabhat Textiles filed a writ petition in the High Court of
Madras, No. 613 of 1952, against respondent I under Art. 226 of the
Constitution and prayed that the High Court, should issue a writ of prohibition
or any other appropriate writ, order or direction prohibiting the first
respondent from continuing the proceedings as per his notice of August 14,
1951, and from enforcing the order of fresh assessment passed in the said
proceedings oil August 14, 1952, in regard to the assessment year 1943-1944. In
respect of the same firm Chilla Pitchayya sought for a similar relief by Writ
Petition No. 201 of 1953 in regard to the proceedings and assessment order for
the assessment year 1944-45. The same Chilla Pitchayya also filed Writ
Petitions Nos. 629 of 1952 and 202 of 1953 in respect of the proceedings taken
and fresh assessment orders passed against the two remaining firms for the
assessment years 1943-44 and 1944-45 respectively. The four petitions were
heard together by the High Court and were dismissed on March 5, 1954. The
petitioners then applied for and obtained from the High Court a certificate under
Art. 133 read with 0. XLV, r. 1, 2, 3 and 8 that the value of the
subject-matter in the petitions before the High Court as well as of the appeals
before this Court was more than Rs. 20,000. It is with this certificate that
the four appeals have come before this Court. Y. Narayana Chetty is the
appellant in Civil Appeal No. 317 of 1957 whereas Chilia Pitchayya is the
appellant in Civil Appeals Nos. 318, 319 and 320 of 1957.
In the High Court it was urged by the
appellants that the proceedings taken under s. 34 against each of the said
firms were without jurisdiction and void. It was also contended that the
cancellation of the registration of each of the firms was similarly void and
without jurisdiction inasmuch as r. 6B under which the said order of cancellation
was passed was ultra vires the Central Board of Revenue which promulgated the
rules under the -powers conferred on it by the Act. Besides the appellants
attacked the validity of the orders passed against them under s. 31 on the
ground that it was illegal to assess escaped income under s. 34 on the basis
that the firms were unregistered firms while maintaining the original
assessment for the said firms on the basis that they had been duty registered
under s. 26A of the Act. The High Court has held against the appellants on all
Besides the high Court has stated in its
judgment that it was admitted by the appellants before it that appeals had been
filed against each one of the orders challenged in the writ proceedings and the
High Court thought that that itself would suffice to justify its refusal to
exercise its jurisdiction under Art. 226 of the Constitution. However, since
the primary relief asked for by the appellants in their respective petitions
was the issue of writ of prohibition the If High Court felt that it may as well
deal with the merits of the contentions raised by the appellants.
That is why the High Court examined the
merits of the said contentions. On behalf of the appellants, Mr. Viswanatha
Sastri has raised the same three points before us.
The first point raised by Mr. Sastri is that
the proceedings taken by respondent I under s. 34 of the Act are invalid
because the notice required to be issued under the said section has not been
issued against the assessees contemplated therein. In the, present case the
Income-tax Officer has purported to act under s. 34(I)(a) against the three
firms. The said sub-section provides inter alia that " if the Income-tax
Officer has reason to believe that by reason of the omission or failure on the
part of the assessee to make a return of his income under s. 22 for any year or
to disclose fully and truly all material facts necessary for his assessment for
that year, income, profits or gains chargeable to income-tax has been
under-.assessed", he may, within the nine prescribed, " serve on the
assessee a notice containing all or any of the requirements which may 194 be
included in the notice under sub-s. (2) of s..22 and may proceed to reassess
such income, -profits or gains." The argument is that the service of the
requisite notice on the assessee is a condition precedent to the validity Of
any reassessment made under s. 34; and if a valid notice is not issued as
required, proceedings taken by the Income-tax Officer in pursuance of an invalid
notice and consequent orders of reassessment passed 'by him would be void and
inoperative. In our opinion, this contention is well founded. The notice
prescribed by s. 34 cannot be regarded as a more procedural requirement; it is
only if the said notice is served on the assessee as required that the
lncome-tax Officer would be justified in taking proceedings against him. If no
notice is issued or if the notice issued is shown to be invalid then the
validity of the proceedings taken by the Income-tax Officer without a notice or
in pursuance of an invalid notice would be illegal and void.
That is the view taken by the Bombay and
Calcutta High Courts in-the Commissioner of Incometax, Bombay City v. Ramsukh
Motilal (1) and B. K. Das & Co. v. Commissioner of Income-tax, West Bengal
(2) and we think that that view is right.
Let us then consider the nature of the notice
issued by the Income-tax Officer in the present proceedings. It is conceded by
Mr. Sastri that the notice issued by the Incometax Officer was served on the
appellant C. Pitchayya on behalf of the firms in question and that in each case
the notice specifically averred that the Income-tax Officer had reason to
believe that the income of the assessee had been under-assersed in the relevant
years of assessment. The notice further required the assessee to deliver to the
officer within thirty-five days of the receipt of the notice a return in the
attached form of the total income and total world income of the assessee
assessable for the relevant period. In pursuance of this notice the appellant
Pitchayya in fact appeared before the officer during the course of the
proceedings commenced under s.34. Mr. Sastri contends that this notice is
defective because it purports to be issued Against the firm and no (1)
'27 I.T.R. 54.
(2)  30 I.T.R. 439.
195 notice has been issued against the
respective partners of the firm. According to Mr. Sastri the assessee who is
entitled to a notice under s. 34(1)(a) is not the firm but each individual
partner of the firm. He also suggests that each individual partner should have
been called upon to make a return of his total income assessable for the
relevant year; inasmuch as the notice is issued against the firm and not
against individual partners it is invalid. In support of this argument Mr.
Sastri has referred us to the definition of the word " assessee"
under s. 2, cl. (2) as it stood prior to the amendment of 1953. Under the said
clause, assessee meant " person by whom income-tax is clearly payable".
In the case of a registered firm incometax is clearly payable by the individual
partners of the firm under s. 23(5) of the Act, savs Mr. Sastri; and so, if the
Income-tax Officer intended to take action under s. 34 it was his duty to issue
the requisite notice against individual partners in respect of their respective
incomes for which they were liable to pay the tax. This argument purports to
derive support from the provisions of s. 23(5) as they stood before the
amendment introduced in 1956. The effect of the said provisions was that
"the sum payable by the firm itself shall not be determined but the total
income of each partner of the firm including therein his share of its income,
profits and gains in the previous year shall be assessed and the sum payable by
him on the basis of such assessment shall be determined "; so that what
the Incometax Officer had to do in assessment proceedings against a registered
firm was to determine the total income of each partner of the firm and not to
determine the sum payable by the firm itself. The argument is that this
provision shows that the person liable to pay the tax was each individual
partner of the firm and so it is the individual partners of the firm who are
entitled to the statutory notice under s. 34(1)(a). In our opinion, this
argument is not well founded. Section 3 of the Act which is the charging
section provides inter alia that "where any Central Act enacts that
income-tax can be charged for any year at any rate or rates, tax at that rate
or those rates shall be 196 charged for that year in accordance with and
subject to the provisions of this Act in respect of the total income of the
previous year of every firm ; " in other words, a firm is specifically
treated as an assessee by s. 3. Besides, the word "person" used by s.
2, sub S. (2) of the Act while defining the assessee, would obviously include a
firm under s. 3(42) of the General Clauses Act since it provides that a person
includes "any company or association or body of individuals whether incorporated.
or not ". Therefore, it would not be correct to say that an assessee under
s. 2, sub-s. (2) of the Act necessarily means an individual partner and does
not include a firm. The argument based upon the relevant provisions of s. 23(5)
is also not valid be. cause it is obvious that for the purposes of assessment
at all relevant and material stages under ss. 22 and 23 it is the firm that is
treated as an assessee. When a return of the income is made for the relevant
year, it is a return with regard to the total income of the firm that has to be
submitted under s. 22; and when assessment is levied under s. 23, the
Income-tax Officer determines and can determine the total income of each
partner of the firm only after ascertaining the total income of the firm itself
It is true that s. 23(5) as it then stood required the Income-tax Officer to
determine the total income of each partner of the firm including his share of
the firm's income and to assess each partner in respect of such income, and in
that sense individual partners of the firm undoubtedly became liable to pay
income-tax ; but it is clear that in determining the total income of each
partner his share in the firm's income has to be included and so the firm does
not cease to be an assessee for the purpose of s. 23(5). This position is now
clarified by the provisions of s. 23(5)(a)(i) and (ii) as amended in 1956. The
present s. 23(5)(a)(i) and (ii) provides:
S. 23(5)(a)(i) and (ii):
(5) Notwithstanding anything contained in the
foregoing sub-sections, when the assessee is a firm and the total income of the
firm has been assessed under subsection (1), sub-section (3) or sub-section
(4), as the case may be 197 (a) in the case of a registered firm(1) the
income-tax payable by the firm itself shall be determined; and (ii) the total,
income of each. partner of the firm, including therein his share of its income,
profits and gains of the previous year, shall be assessed and the sum payable
by him on the basis of such assessment shall be determined:
and so it is clear that the registered firm
does not at all cease to be an assessee under this provision.
In this connection it would be relevant to
refer to S. 23(4). This subsection provides:
" If any person fails to make the return
required by any notice given under subsection (2) of section 22 and has not
made a. return or a revised return under sub-section (3) of the same section or
fails to comply with all the terms of a notice issued under sub-section (4) of
the same section or, having made a return, fails to comply with all the terms
of a notice issued under subsection (2) of this section, the Income-tax Officer
shall make the assessment to the best of his judgment and determine the sum
payable by the assessee on the basis of such assessment and, in the case of a
firm, may refuse to register it or may cancel its registration if it is already
Provided that the registration of a firm
shall not be cancelled until fourteen days have elapsed from the issue of a,
notice by the Income-tax Officer.to the firm intimatiiig his intention to
cancel its registration" This provision clearly shows that the person to
whom the first part of the provision refers includes a firm and it lays down
that if a firm commits a default as indicated the Income-tax Officer may refuse
to register it or may cancel its registration if it is already registered. Thus
there can be no doubt that s. 23(4) treats the fit-in as an assessee and
provides for the imposition of penalty against the firm in case the firm
commits any of the defaults indicated in the sub-section. The effect of the
relevant provisions of s. 23 therefore is that for the assessment of the total
taxable income it is the affairs of the assessee firm that are investigated and
198 examined and when the total income of the firm is ascertained, it is
allocated to its individual partners in proportion to their respective shares.
The result of such allocation undoubtedly is to make the partners liable to pay
tax in respect of their taxable income thus allocated ; but that cannot justify
the inference that the firm is not an assessee in the relevant proceedings.
Even when the notice is issued under s.
34(1)(a) the Income tax Officer proceeds to act on the ground that the income,
profits and gains of the firm which are chargeable to an income-tax have been
under-assessed; it is the income of the firm which is initially ascertained in
the assessment proceedings under s. 23 and it is in respect of the said income
of the firm that the Income-tax Officer finds that a part of it has escaped
assessment. We do not, therefore, think that the appellant's argument that the
notice issued against the firm and served on the appellant was invalid under s.
34(1)(a) can be accepted.
It is then urged that the Income-tax Officer
was bound to issue notices to individual partners of the firms because at the
material time all the firms had been dissolved. Mr. Sastri concedes that under
s. 63 (2) a notice or requisition under the Act may in the case of a firm be
addressed to any member of the firm but his contention is that this applies to
a firm in existence and not to a firm dissolved. If the, appellants' case is
that as a result of dissolution of the firms the firms had discontinued their
business as from the respective dates of dissolution they ought to have given
notices of such discontinuance of their business under s. 25(2) of the Act.
Besides, in the present case, the main appellant has in fact been served
personally and the other partners who may not have been served have made no
grievance in the matter. We are, therefore, satisfied that it is not open to
the appellants to contend that the proceedings taken by the Income-tax Officer
under s. 34(1)(a) are invalid in that notices of these proceedings have not
been served on the other alleged partners of the firms. Incidentally it may be
pointed out that the finding of 199 the Income-tax Officer in respect of all
the three firms is that the only persons who had interest in the business
carried on by the said firms were B. Audeyya and C. Pitchayya. It is remarkable
that B. Audeyya has not cared to challenge the proceedings or to question the
validity of the fresh assessment orders passed by the Income-tax Officer in the
Mr. Sastri then challenges the validity of
the cancellation of the registration of the three firms on the ground that r. 6B
under which the Income-tax Officer purported to act is ultra vires. Rule 6B
provides that in the event of the Income-tax Officer being satisfied that the
certificate granted under r. 4 or under r. 6A has been obtained without there
being a genuine firm in existence he may cancel the certificate so granted. The
material rules of which r. 6B is a part have been framed by the Central Board
of Revenue under the authority conferred by s. 59 of the Act. This section
empowers the Central Board of Revenue, subject to the control of the Central
Government, to make rules inter alia for carrying out the purposes of the Act.
Section 59 (2)(e) lays down that such rules may provide for any matter which by
this Act is to be prescribed and the rules preceding r. 6B deal with the
procedure to be followed, and prescribe the application to be made, for the
registration of firms under s. 26A of the Act. Section 59(5) provides that the
rules made under the said section shall be published in the official gazette
and shall thereupon have effect as if enacted in this Act. Thus there is no
doubt that the rules are statutory rules and once they are published in the
official gazette they are operative as if they were a part of the Act. Mr.
Sastri concedes this position; but he argues that r. 6B is inconsistent with
the material provisions in the Act and is therefore ultra vires the Central
Board of Revenue. This argument is based substantially on the provisions of s.
23(4). We have already referred to the provisions of this subsection. Mr. Sastri
contends that it is only where the requirements of s. 23(4) are satisfied that
the registration of a firm can be cancelled. The procedure for registration of
firms is laid down in s. 26A of 200 the Act. An application has to be made to
the Incometax Officer on behalf of any firm constituted Linder the instrument
of partnership specifying the individual shares of the partners for
registration for the purposes of the Act and of any other enactment for the
time being in force and relating, to income-tax and supertax. Sub-section (2)
requires that the said application ,,hall be made by such person or persons
and, at such times and shall contain such particulars and shall be in such form
and be verified in such manner as may be prescribed and it shall be dealt with
by the Incometax Officer in such manner as may be prescribed. It is in
pursuance of the requirements of s. 26(2) that the relevant rules for the
registration of the firms have been made. The question which arises for our
decision in this connection is: if a firm has been registered Linder s. 26A,
when can such registration be cancelled ? The appellant suggests that the only
cases in which such registration can be cancelled are those prescribed in s.
23(4). We have no doubt that this argument is fallacious. The cancellation of
registration under s. 23(4) is in the nature of a penalty and the penalty can
be imposed against a firm if it is guilty of any of the defaults mentioned in
the said subsection. It would be noticed that where registration is cancelled
under s. 23(4), there is no doubt that the application for registration had
been properly granted. The basis of an order under s. 23(4) is not that the
firm which had been registered was a fictitious one, but that, though the
registered firm was geniuine, by its failure to comply with the requirements of
law it had incurred the penalty of having its registration cancelled. That is
the effect of the provisions of s. 23(4). On the other hand, r. 6B deals with
cases where the Income-tax Officer is satisfied that a certificate of
registration has been granted under r. 4 or under r. 6A without there being a
genuine firm in existence ; that is to gay an application for registration had
been made in the name of a firm which really did not exist; and on that ground
the Income-tax Officer proposes to set right the matter by cancelling the
certificate which should never have been granted to the 201 alleged firm. That
being the effect of r. 6B it is impossible to accede to the argument that the
provisions of this rule are inconsistent with the provisions of s. 23(4) of the
Act. If the Income-tax Officer is empowered under s. 26A read with the relevant
rules to grant or refuse the request of the firm for registration, it would
normally be open to him to cancel such registration if he discovers that
registration had been erroneously granted to a firm which did not exist. Rule
6B has been made to clarify this position and to confer on the Income-tax
Officer in express and specific terms such authority to review his own decision
in the matter of the registration of the firm when he discovers that his
earlier decision proceeded on a wrong assumption about the existence of the
firm. In our opinion, there is no difficulty in holding that r. 6B is obviously
intended to carry out the purpose of the Act and since it is not inconsistent
with any of the provisions of the Act its validity is not open to doubt.
It is, however, urged that whereas the firm
aggrieved by the order passed by the Income-tax Officer under s. 23(4) can
challenge the correctness or propriety of the order in an appeal against the
final assessment order passed under s. 23, no such remedy is available to the
firm whose registration is cancelled under r. 6B. We are not impressed by this
argument. The validity of the rule cannot, in our opinion, be challenged merely
on the ground that no appeal has been provided against the order passed under
the impugned rule. It is also true that whereas before taking action under s.
23(4) the Income-tax Officer is required to issue a notice to the firm, no such
provision is made under r. 6B. Mr. Sastri has, however, conceded that the
appellant before us had notice and was given an opportunity to satisfy the
Income-tax Officer that the respective firms were genuine and not fictitious.
Thai being so we do not think that it would be open to the appellant to contend
that the order passed against him under r. 6B is invalid on the purely academic
ground that r. 6 B does not require notice to be issued before the registration
of a firm is cancelled.
If the power 26 202 under r. 6B is exercised
by the Income-tax Officer against a firm without giving it a notice in that
behalf and without affording it an opportunity to satisfy the officer that it
is a genuine firm, it may be open to the firm to question the validity of the
order on that ground. We are, however, not called upon to deal with such a case
in the present appeals. In this connection we may incidentally refer to the
decision of this Court in Ravula Subba Rao v. Commissioner of 1. T., Madras (1)
where this Court has held that rules (2) and (6) of the rules framed under s.
59 of the Indian Income-tax Act are not ultra vires the rulemaking authority.
The last argument which Mr. Sastri sought to
raise before us was that the revised assessment is completely illogical, and
therefore illegal, in each case inasmuch as the original assessment for the two
assessment years still remains as on the basis that the firms in question are
registered and the fresh assessment in respect of the escaped income for the
same years is made on the basis that the said firms are not registered. Mr.
Sastri says that it is not open to the Income-tax Officer to adopt such a course.
If registration has been cancelled the whole of the assessment should be made
on that footing; the department cannot treat the firm as registered for part of
the income, and unregistered for the balance, during the same assessment years;
that is Mr. Sastri's grievance. We do not propose to deal with the merits of
this contention. There can be no doubt that it would be open to the appellants
to raise this contention in the appeals which they have filed against the fresh
orders of assessment. We understand that applications have been made by the
appellants in respect of the said orders of assessment under s. 27 of the Act.
If that be so, the appellants may, if it is open to them to do so, ventilate
their grievance in the said proceedings also. We hold that this contention
cannot be urged in petitions for writs of prohibition under Art. 226 of the
Constitution, since they do not raise any question of jurisdiction. All that
the appellants would be able to argue on this ground (1)  S.C.R. 577.
203 would be that the course adopted by the
Income-tax Officer in making orders of fresh assessment is irregular and
illogical and should be corrected. That is a matter concerning the merits of
the orders of assessment and by no stretch of imagination can it be said to
raise any question of jurisdiction under Art. 226. That is why we express no
opinion' on this point.
Before we part with this case we would like
to, observe that Mr. Kripal for the respondent sought to raise three
preliminary objections. He urged that the issue of a writ is a discretionary
matter and since the High Court has refused to exercise its discretion in
favour of the appellants the appeals would be virtually incompetent inasmuch as
this Court would be slow to interfere with the exercise of discretion by the
High Court. He also argued that the original petitions to the High Court are
incompetent under Art. 226 since under the Act the appellants had an
alternative effective remedy available to them in the form of appeals against
the impugned orders and in fact they had filed such appeals and had also made
applications under s. 27 of the Act. Mr. Kripal also contended that the High
Court would have no jurisdiction to issue a writ of prohibition against the tax
authorities. We do not propose to consider these objections because, as we have
already indicated, we are satisfied that the view taken by the High Court on
the points raised before it is right.
These objections may have to be considered in
future on a suitable occasion.
The result is the appeals fail and must be
dismissed with costs.