V.S. DESHPANDE, J.

( 1 ) AN important question repeatedly raised before the Admission Benches of the

High Courts is whether and if so when a writ petition challenging the validity of an

order of a statutory authority should be entertained even though a statutory appeal

is provided against the said order but is not availed of by the petitioner.

( 2 ) THIS and the connected writ petition (civil writ 781 of 1974) each challenges

the validity of an order of the Additional Commissioner of Income-tax passed under

section 263 of the Income Tax Act, 1961 cancelling the order of assessment made

by the Income-Tax Officer and asking the Income Tax Officer to make a fresh

assessment. These orders were appealable under section 253 of the said Act to the

Income Tax Appellate Tribunal but neither have they been appealed against nor has

any explanation been given in the writ petitions as to why the petitioners chose not

to file appeals but to file these writ petitions.

( 3 ) THE challenge to the impugned orders is two-fold, namely, (a) that the

conditions to be fulfilled before the Additional Commissioner could assume

jurisdiction under section 263 to revise the orders of the Income Tax Officer were

not fulfilled; and (b) that on merits the orders of the Income Tax Officers were

correct and should not have been interfered with by the Additional Commissioner.

( 4 ) THE first question to which this court has to apply its mind is whether to admit

such a writ petition for being considered as a whole. Once the merits of such a writ

petition are considered, the Court may find either that the writ petition deserves to

be allowed or that it is liable to be dismissed. In either event, the decision will be on

merits. After consideration of the merits, there is little point in the Court deciding the

preliminary question whether the writ petition should have been entertained even

though the petitioner has not availed himself of the opportunity of filing the

statutory appeal. In view of the decisions of the Supreme Court in Sheo Nath Singh

v. Appellate Assistant Commissioner, (1971) 81. T. R. 147 (S. C.) (1), and L. Hirday

Narain v. Income Tax Officer, (1970) 78. T. R. 26 (S. C.) (2), this Court would not

be warranted in dismissing a writ petition on the preliminary ground of the failure to

avail the alternative remedy of statutory appeal if the Court once considers the

merits of the case. We have, therefore, decided to consider the preliminary question

as to whether the writ petition should be entertained at all in view of the failure of

the petitioners to avail themselves of the statutory appeal at threshold without going

into the merits of the case as a whole.

( 5 ) THE facts necessary to understand the petitions are as follows. Gee Vee

Construction Company Private Limited was incorporated on July 25, 1969 with the

object of acquiring land and making constructions thereon. It purchased bungalow

No. II, Tolstoy Marg, New Delhi, for Rs. 9,5000. 00 after borrowing loans inasmuch

as the paid up capital of the company was only Rs. 65,000/. Some of the directors

and the shareholders of the company along with some others also entered into a

partnership called Gee Vee Enterprises and got. it registered with the Registrar of

Firms in 1969. An agreement was entered into between these two sister concerns

on December 23, 1969. The partnership was to build a multi-storeyed building on

the plot after taking advance from the licencees to whom the flats in the building

were to be allotted. The partnership was to keep 90 percent of this money and pay

10 per cent out of it to the company along with Rs. 2,000. 00 per month as

consideration for this agreement. In lieu of the 10 per cent of the money so received

the company was to issue shares to the licencees who would be taking up the flats.

The agreement was to come to an end after the building was constructed, flats

allotted and the money so distributed. The Income Tax Officer granted registration

to the firm under sections 184 and 185 of the Income Tax Act and made the very

first assessments of the company and the firm for the year 1971-72 on that basis

apparently without ascertaining the truth of the facts on which the registration was

granted and the returns were made though the petitioners contend that the Income

Tax Officer had made the inquiries and was satisfied about the truth of the facts.

Shortly before the expiry of the period of limitation of two years from the making of

the assessment orders, the Additional Commissioner called for the record of the

assessment, issued notices to the company and the firm to show cause why the

assessment should not be revised and after hearing them passed the impugned

orders cancelling the assessments and I directing the Income Tax Officer to make

fresh assessments.

( 6 ) THE preliminary question for consideration is whether the writ petitions should

be entertained at all in view of the failure of the petitioners to avail of the alternative

remedy of appeals against the impugned orders under section 253 of the Act. On

the one hand, it is rightly argued for the petitioners that the jurisdiction of this Court

under Article 226 is very wide. In law this Court certainly has jurisdiction to entertain

a writ petition challenging the validity and legality of the order of a quasi-judicial

authority. But the very width of this jurisdiction must make this court circumspect. If

writ petitions were entertained merely because this Court can legally do so, evils will

follow. Firstly, the writ jurisdiction of this Court which is extraordinary civil

jurisdiction will cease to be so and will be like the ordinary original jurisdiction of a

civil court where a party has a right to file a suit and the Court is bound to entertain

it. An impossible burden will be thrown on this Court with a work-load which could

not be coped with. Secondly, the intention, of Parliament and the scheme of the

statutes In which appeals and revisions are provided against authorities acting under

the said statutes would be defeated without any good reason. The fundamental rule

laid down by a five Judges Bench of the Supreme Court in Lalji Haridas v. R. H.

Bhatt, (1965) 55. T. R. 415 at 413 (3), speaking through Gajendragadkar, C.. is as

follows :-"the jurisdiction conferred on the High Court under Article 226 is not

intended to supersede the jurisdiction and authority of the Income Tax Officers to

deal with merits of all the contentions that the assessees may raise before them,

and so it would be entirely inappropriate to permit an assessee to move the High

Court under Article 226 and contend that a notice issued against him, is barred by

time. That is a matter which the income-tax authorities must consider on the merits

in the light of the relevant evidence. "this rule has been consistently followed

subsequently by smaller Benches of the Supreme Court. In C. A. Abraham v. Income

Tax Officer, (1961) 41. T. R. 425 at 428, (4) also Shah,. had laid down the same

rule in the following words :-"in our view, the petition filed by the appellant should

not have been entertained. The Income Tax Act provides a complete machinery for

assessment of tax and imposition penalty and for obtaining relief in respect of any

improper orders passed by the income-tax authorities, and the appellant could not

be permitted to abandon resort to that machinery and to invoke the jurisdiction of

the High Court under Article 226 of the Constitution when he had adequate remedy

open to him by an appeal to the Tribunal. "in Gita Devi Aggarwal v. Commissioner of

Income Tax. (1970) 76. T. R. 496 (S. C.) at 497-498 (5), the rule was expressed in

stronger terms as follows:-"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. Municipal Board, Kairana, (1950) S. C. R. 566, 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 therefore. . . . In the present case no explanation has

been given by the appellant in the writ petition for not preferring an appeal under

the Act and justifying her recourse to the special jurisdiction of the High Court under

Article 226 of the Constitution. In our opinion the High Court would have justified in

the circumstances of this case in dismissing the writ petition of the appellant in

limine. "the same rule had been affirmed in Standard Mills Co. Ltd. v. M. Ramlingam,

(1966)60. T. R. 46 (S. C.) (6 ). The latest decision affirming the rule is Champalal

Binani v. Commissioner of Income- Tax, (1970)76. T. R. 692 (S. C.) at 695 (7) in the

following words:-"before parting with the case we deem it necessary once more to

emphasize that the Income Tax Act provides a complete and self-contained

machinery for obtaining relief against improper action taken by the departmental

authorities, and normally the party feeling himself aggrieved by such action cannot

be permitted to refuse to have recourse to that machinery and to approach the High

Court directly against the action. The assessee had an adequate remedy under the

Income-tax Act which he could have availed of. He, however, did not move the

Income-tax Appellate Tribunal which was competent to decide all questions of fact

and law which the assessee could have raised in the appeal including the grievance

that he had not adequate opportunity of making his representation and invoked the

extraordinary jurisdiction of the High Court. In our judgment, no adequate ground

was made out for entertaining the petition. A writ of certiorari is discretionary; it is

not issued merely because it is lawful to do so. Where the party feeling aggrieved by

an order of an authority under the Income Tax Act has an adequate alternative

remedy which he may resort to against the improper action of the authority and he

does not avail himself of that remedy the High Court will require a strong case to be

made out for entertaining a petition for a writ. "

( 7 ) IN the United States this rule is known as the exhaustion of administrative

remedies. The division of functions between courts and administrative agencies

often raises the problems of determining whether initial action is to be taken by the

court of by the administrative authority and at what stage of administrative action

an aggrieved party can invoke the jurisdiction of the court. The V. S. Courts have

usually followed what the U. S. Supreme Court said in Myers v. Bethlehem Shipbuilding Corporation, (1938) 303 U. S. 41 at 50-51 (8), to be "the long settled rule

of judicial administration that no one is entitled to judicial relief for a supposed or

threatened injury until the prescribed administrative remedy has been exhausted. "

According to Professor Davis (Handbook on Administrative Law, page 615),"the

principal reasons for requiring exhaustion of administrative remedies relate to

efficient management and orderly procedure, use of the agencys specialized

understanding, adequacy of legal remedies, exclusive jurisdiction, and statutory

requirement of final order. "

( 8 ) THE rule established by the consistent decisions of the Supreme Court is that

ordinarily a party aggrieved by the order of the statutory authority under the Income

Tax Act (which principle also applies to the orders under other Acts) must avail

himself of the hierarchy of statutory remedies under the said Act such as an appeal

or a revision or a reference to this Court through the Income Tax Appellate Tribunal.

This vertical judicial review given to him by the statute is a matter of right of the

assessee. If he wishes to abandon this right and seek a collateral review of an

impugned order in this Court under Articles 226 or 227, he must make out a strong

case why this Court should entertain his writ petition and make an exception to the

general rule. Since the petitioners have given absolutely no explanation why they

did not file appeals against the impugned orders, their case is really covered by the

general rule and the writ petitions are liable to be dismissed in limine simply on the

ground that no explanation is given why the alternative remedy of appeal has not

been pursued by the petitioners.

( 9 ) WHAT is the nature of this rule It is not a rigid rule of law. Had it been so, it

would have been a rule of thumb to be followed in a routine manner in every case.

No writ petitions would then have been entertained whenever a statutory appeal,

review, revision or reference was available to the petitioner. No discretion would

have been left to the Court to make an exception even in hard cases in the interests

of justice. This would have been contrary to the very object of Article 226 which

gives this Court a wide power of judicial review with a discretion to intervene

whenever justice requires such interference. In short, when the conscience of the

Court is touched, the court is able to depart from the rule and entertain a writ

petition in view of the particular circumstances of the case. But the discretion of the

Court is not arbitrary. Had it been so, the law would be uncertain and its operation

would be left to chance. Whenever, therefore, the Supreme Court thought that the

case was of an exceptional nature, the Court gave reasons for the making of the

exception to the rule and thereby laid down guidelines for the High Courts in the

exercise of their discretion under Article 226. We may examine these guidelines and

find out if the present case is covered by any of the exceptions.

( 10 ) PETITIONERS who have approached High Courts under Article 226 by passing

the statutory remedies of appeals, revisions, etc. , have advanced various grounds

suitable to the individual circumstances of each case. Some of these grounds were

as follows:- (1) That the impugned order was passed without jurisdiction; (2) That it

violated rules of natural justice; (3) That it disclosed an error of law apparent on the

face of the record; (4) That it was based on extraneous or mala fide considerations;

(5) That the statutory remedy was not adequate or was onerous; (6) That resort to

the statutory remedy would cause irreparable injury to the petitioner; (7) That the

impugned order infringes on a fundamental right of the party; and (8) That the

provision of law under which the order was passed is itself unconstitutional.

( 11 ) LET us examine if the circumstances of the present two writ petitions fall

under any of the above exceptions. (1) Lack of jurisdiction in passing an order would

be due either to the absence of the existence of jurisdictional facts or the non-fulfillment of the requirements of the jurisdictional law. Where a statutory appeal is

not available, this Court, may entertain a writ petition on the ground that the

impugned order was without jurisdiction because the jurisdictional facts did not exist

particularly if remedy by way of suit is also barred to the petitioner. This would

mean that there is practically no alternative remedy and the Court would be morally

bound to entertain a writ petition and even inquire into the existence of the

jurisdictional facts if necessary (Delhi Transport Corporation v. Delhi Administration,.

L. R. (1973) 1 Delhi 838 (9 ). Otherwise, the inquiry into the questions of fact, even

if it is jurisdictional in nature, is primarily the function of the statutory authority

which is equipped to carry out full investigation into facts by taking evidence.

Similarly, the aggrieved party is entitled as of right to appeal: on questions of fact as

well as of law. In the present case, for instance, the Income Tax Appellate Tribunal

would have heard an appeal against the impugned order under section 253 on law

as well as facts. A writ petition would not, therefore, be normally admitted by this

Court where jurisdiction is challenged on factual grounds.

( 12 ) A petitioner would be on a better footing when he challenges the jurisdiction

of the authority passing the impugned order on purely legal grounds such as the

construction of the statutory provision under which the order is passed and the facts

on which the order is based are not disputed. The classic decision relied on by the

assessees in such a case is Calcutta Discount Co. Ltd. v. income Tax Officer, (1961)

41. T. R. 191 (S. C.),. In its return the company (assessee) had stated all the

material facts and its return had been accepted by the Income Tax Officer and an

assessment was made. Later a notice was issued to the assessee under section 34

of the Income Tax Act, 1922 on the ground that the Income Tax Officer had reason

to believe that by reason Of the omission or failure on the part of the assessee to

disclose fully and truly all material facts necessary for assessment, some income had

escaped assessment. The Revenue was unable to show that the assessee had failed

to disclose fully and truly all material facts necessary for assessment. All that was

argued for the Revenue was that the assessee had failed to disclose "the true

intention behind the sale of the shares", that is to say, the secondary inferences to

be drawn from the primary facts. The jurisdictional condition for the issue of the

notice under section 34 was thus not fulfilled. But the writ petition challenging the

notice was rejected by the High Court under Article 226 of the Constitution. The

appeal was allowed by a majority of three to two of the Supreme Court. The

argument that the assessee had sufficient opportunity to conduct the notice before

the Income Tax Officer and thereafter before the appellate officer, the Appellate

Tribunal and ultimately in a reference to the High Court, did not impress the

majority of the Court who observed at pages 207-208 that-"the existence of such

alternative remedy is not however always a sufficient reason for refusing a party

quick relief by a writ or order prohibiting an authority acting without jurisdiction

from continuing Such action. . . . . . . When the Constitution confers on the High

Courts the power to give relief it becomes the duty of the courts to give such relief

in fit cases and the courts would be failing to perform their duty if relief is refused

without adequate reasons. "the appeal was, therefore, allowed and the orders

winder section 34 were quashed.

( 13 ) SHRI G. C. Sharma argued that the orders passed by Income-tax authorities

under sections 34 and 33b of the old Act corresponding to sections 147, and 263 of

the new Act stood on the same footing when they were challenged as being without

jurisdiction by way of a writ petitions We do not, however, think that he can derive

any assistance from the decision in Calcutta Discount Companys case. As pointed

out by the Supreme Court in Mysore State Road Transport Corporation v. The

Mysore Road Appellate Tribunal, (Civil Appeal No. 1801 of 1970 decided on August

8, 1974) (II) referring to an essay on "determining the Ratio Decidendi of a case" by

Dr. A. L. Goodhart, "the principle of a case is determined by taking into account the

facts treated by the Judge deciding a case as material and his decision as based

thereon. " The ratio of the decision in Calcutta Discount Companys (10) case cannot

apply to the facts of the present case for the following reasons :- (I) Under section

34, the duty of the assessee is only to state the material facts necessary for the

purpose of. assessment. Once these facts are accepted and an assessment is made,

the Income Tax Officer cannot reopen the assessment unless he had reason to

believe that the material facts were not truly disclosed. . The reason why the

reopening of the assessment is thus made somewhat difficult is to preserve the

finality of the previous decision which should not be destroyed except for a good

reason. Once it is found that the disclosure of facts was complete, no jurisdiction

could arise for the reopening of the assessment. (II) On the other hand, the

condition for the assumption of jurisdiction under old section 33b and the new

section 263 is easier to fulfil. The reason is that it is not the Income Tax Officer but

a superior Officer like the Commissioner who is exercising a revisional jurisdiction

suo motu thereunder. The superior officer could be trusted with a larger power. The

only requirement for the exercise of this power is that the Commissioner should

consider that the order passed by the. Income Fax Officer is "erroneous in so far as

it is prejudicial to the interests of the Revenue. " What is the meaning of

"erroneous" in this context It was argued for the assessees by Shri G. C. Sharma

that the word "erroneous" means that the order must appear to be wrong on the

face of it. In other words, he equated the "error" with "error of law apparent on the

face of record" which is a well-known ground for the review of a quasi-judicial order

by this Court under Article 226. We arc unable to agree with this interpretation. The

intention of the legislature was to give a wide power to the Commissioner. He may

consider the order of the Income Tax Officer as erroneous not only because it

contains some apparent error of reasoning or of law or of fact on the face of it but

also because it is a stereo-typed order which simply accepts what the assessee has

stated in his return and fails to make inquiries which are called for in the

circumstances of the case. Shri Sharmas contention that this would give the

Commissioner the power to revise the order of the Income Tax Officer merely on

the ground of suspicion is. untenable in view of the following two Supreme Court

decisions which have already construed the old section 33b. contrary to Shri

Sharmas contention. In Rampyari Devi Saraogi v. Commissioner of Income Tax,

(1968)67. T. R. 84 (12), the Income Tax Officer accepted the return of the assessee

in respect of the initial capital, the gift received and the sale of jewellery, the income

from business, etc. , without any inquiry or evidence whatsoever. For this reason the

Commissioner held the order to be erroneous. In revision, he cancelled the order

and ordered the Income Tax Officer to make a fresh assessment. In his order the

Commissioner had used certain new grounds which had not been disclosed to the

assessee in the notice given to him to show cause why the order of the Income Tax

Officer should not be revised. But apart from these new grounds, the Supreme Court

observed at page 88 of the report that- "there was ample material to show that the

Income Tax Officer made the assessments in undue hurry. . . . . . . . ,. . . The

assessee made a declaration giving the facts regarding initial capital, the ornaments

and presents received at the time of marriage, other gifts received from her father-in-

law, etc. , which should have put any Income Tax Officer on his guard. But the

Income Tax Officer without making any inquiries to satisfy himself passed the

assessment order. . . . . . . A short-typed assessment order was made for each

assessment year. . . . . . No evidence whatsoever was produced in respect of the

money-lending business done. . . . . . . . . . . . . No names were given as to the

parties to whom the loans were advanced. "in Tara Devi Aggarwai v. Commissioner

of Income Tax, (1973) 88. T. R. 323 (13), also the Income Tax Officer, Howrah,

while remarking that the source of income of the assessee was income from

speculation and interest on investments stated that neither the assessee ,was able

to produce the details and vouchers of the speculative transactions made during the

accounting year nor was there any evidence regarding the interest received by the

assessee from different parties on her investments. Notwithstanding these defects

the Income Tax Officer did not investigate into the various sources but assessed the

assessee on a total income of Rs. 9037. 00. The inquiries made by the

Commissioner revealed that the assessee did not reside or carry on business at the

address given in the return. The Commissioner was also of the view that the Income

Tax Officer was not justified in according the initial capital, the sale of ornaments,

the income from business, the investments, etc. . without any inquiry or evidence

whatsoever and that the order of assessment was erroneous and prejudicial to the

interests of the Revenue. The High Court held that there were materials to justify

the Commissioners finding that the order of assessment was erroneous insofar as it

was prejudicial to the interests of the Revenue. Shri Sharma tried to distinguish this

decision on the ground that the address of the assessee in that case was given

incorrectly. The decision of the High Court and that of the Supreme Court were not,

however, based on that ground at all. On the contrary, the Supreme Court followed

their previous decision in Rampyari Devis (12) case and upheld the decision of the

High Court precisely on the same grounds. These two decisions show that it is not

necessary for the Commissioner to make further inquiries before cancelling the

assessment order of the Income Tax Officer. The Commissioner can regard the

order as erroneous on the ground that in the circumstances of the case the Income

Tax Officer should have made further inquiries before accepting the statements

made by the assessee in his return.

( 14 ) THE reason is obvious. The position and function of the Income Tax Officer is

very different from that of a civil court. The statements A made in a pleading proved

by the minimum amount of evidence may he accepted by a civil court in the absence

of any rebuttal. The civil court is nuctral. It simply gives decision on the basis of the

pleading and evidence which comes before it. The Income Tax Officer is not only an

adjudicator but also an investigator. He cannot remain passive in the face of a

return which is apparently in order but calls for further inquiry. It is his duty to

ascertain the truth of the facts stated in the return when the circumstances of the

case are such as to provoke an inquiry. The meaning to be given to the word

"erroneous" in section 263 emerges out of this contract. It is because it is incumbent

on the Income Tax Officer to further investigate the facts stated in the return when

circumstances would make such an inquiry prudent that the word "erroneous" in

section 263 includes the failure to make such an inquiry. The order becomes

erroneous because such an inquiry has not been made and not because there is any

thing wrong with the order if all the facts stated therein are assumed to be correct.

( 15 ) THE company and the partnership in this case were formed in the same year

with many members common in both. The fact that the company purchased the

land but handed over construction work to the partnership even though the object

of the company was to make such construction should naturally provoke a query as

to why this was done. The partnership was required to be in existence as a genuine

firm in the previous year before it could be registered under section 185 of the Act.

Such registration gives a substantial advantage to if for the purpose, of taxation. In

the very first assessment of the company and the firm the advantage of the

registration was given to the firm. The question would naturally arise whether the

firm was formed merely for the purpose of getting a tax advantage. Shri Sharma

argued that there is nothing wrong if a legitimate advantage is sought by these

means. But it was precisely for that reason that the Income Tax Officer had to be

satisfied that the firm had existed in the previous year genuinely. It cannot be said

that the Commissioner could not be reasonably of the opinion that the order of the

Income Tax Officer was erroneous because previous inquiries were not made by the

Income Tax Officer. Nor can ii be said that it was necessary for the Commissioner to

himself make such inquiry before cancelling the order of assessment. In view of the

decisions of the Supreme Court in Rampyari Devi and Tara Devi Aggraval (13 ). the

challenge of the petitioners to the jurisdiction of the Commissioner exercised under

section 263 fails and the writ petitions do not qualify for admission on the ground of

the impugned orders being without jurisdiction. (2) Violation of rules of natural

justice must consist in the denial of a proper hearing or opportunity to the assessee

to present his case. While it is most important that the assessee must get the

benefit of such rules of natural justice, such a benefit can be given to him by the

Income-tax authorities themselves. It cannot be said that the assessee can be given

natural justice only by this Court under Article 226. In Champalal Binanis (7) case,

the assessee had contended that the Commissioner violated the rules of natural

justice because he did not give adequate opportunity to the assessee to appear and

contest under section 33b of the old Act. The Supreme Court answered this

contention at page 695 in the following words:- "it the assesses had any grievance

about the sufficiency of the opportunity given to him to make his representation, his

obvious remedy was to appeal against the order to the Income Tax Appellate

Tribunal and the Tribunal would have considered the appeal on merits and given

him an opportunity of tendering evidence. But such a course would not have

served the object of the assessee. " Shri sharma faintly REFERRED TO to the denial

of some rule of natural justice without specifying it. If there was any such denial,

the petitioners remedy still lay in appeals to the Income Tax Appellate Tribunal. The

writ petitions are not, therefore, covered by this exception. (3) The impugned orders

by the Additional Commissioner are reasoned orders. They do not disclose any error

of law apparent on the face of the record. In Joharmal Murlidhar and Co. v.

Agricultural Income-tax Officer, (1971) 79. T. R. 6 (14 ). the Supreme Court held

that the assessments were arbitrary and that the fact. that the appellant had not

appealed under the Act was a good ground for refusing to give relief to the

appellant. But taking into account the amount involved and the simple nature of the

proof required, the Supreme Court directed the Income Tax Officer to issue fresh

notice to the assessee to produce the Central income-tax assessment orders and if

the assessee produced those orders, the agricultural income-tax assessment shall

stand cancelled and the officer shall make fresh assessments. If the facts of a case

are undisputed and the question of law can be answered without difficulty in favour

of the assessee, then the High Court may exercise its discretion in entertaining a

writ petition to give a quick tlief to the assessee to avoid the delay involved in his

resorting to the departmental appeals etc. But. this exception would apply only

when the errors of law is apparent on the face of the record which according to the

Supreme Court would mean only such error as would be evident without much

argument (H. V. Kamath v. Ahmed Ishaque, 1955-1. S. C. R. 1104 at 1123 (15 ). It

is obvious that there is no such error of law apparent on the face of the impugned

orders. (4) Art order based on extraneous considerations passed with an ulterior

motive would smack of mala fides. In so far as such objection is provable only by

investigation of facts it is the appellate authorities who are better equipped to

consider ,it inasmuch as they have jurisdiction over questions of fact as well as of

law. A writ court is not properly equipped to deal with disputed questions of fact.

Nevertheless, in a proper case the conscience of the Court would naturally be

aroused by such allegations of mala fides and the writ petition would be entertained

as an exception as was held by the Supreme Court in Madhya Pradesh Industries

Ltd. v. Income Tax Officer, (1965)57. T. R. 637. On the facts disclosed, the Court

was of the view that the power under section 34 of the old Act was sought to be

used "as a mere cloak or pretence for making a fishing enquiry or investigation with

the object of reviewing the previous order". The disclosure made by the assessee

was found to be true in all aspects. As the impugned notice was issued with a

collateral object, the writ petition complaining against the order on such grounds

could not be rejected without an inquiry. The Supreme Court further, observed that

we are constrained to set aside the order because we have no indicating as to the

grounds on which the High Court has rejected the petition which, prima facie. makes

out a case which may require investigation and trial. In the special circumstances of

this case, we think that the order of the High Court ought to be set aside. There is

no such ground available to the petitioners in the present case. (5) At times the

statutory remedy is inadequate either because all the grounds open to a petitioner

in a writ petition would not be available to him in the statutory appeal or revision or

because the statutory remedy cannot be availed of unless some onerous condition

such as the deposit of the full amount of tax or penalty is required to be fulfilled.

This cannot be said of the remedy of appeal under section 253. (6) In an

exceptional case the relief to be given to the petitioner brooks no delay. Irreparable

injury would be caused to him if he. s directed to go to the statutory remedy. In

such an exceptional case, the writ petition may be entertained even though the

alternative remedy is not availed of by the petitioner. In. S. Parkar v. V. B. Palekar.

(1974) 94. T. R. 616 (Bom), the whole of the property of the petitioner was

attached. The writ petition was allowed to remain pending in the High Court for two

years before it came up for hearing. It was then thought by the Court that it would

cause too much hardship to the petitioner if the writ petition were to be thrown out

in limine. at that stage on the ground that the petitioner had not availed of the

statutory remedies which would be time-consuming and even likely to cause

harassment to the petitioner. (7) Infringement of a fundamental right may be

caused either by a quasi-judicial order or by a direct executive order. We are here

concerned with only the former and not with the latter. It is settled by the decision

of the Supreme Court in Ujjambai v. State of Uttar Pradesh, (1963) 1 S. C. R. 778,

(18) that the order of a quasi-judicial tribunal cannot be attacked on the ground of

having infringed a fundamental right in a writ petition filed in the Supreme Court

under Article 32 of the Constitution. The infringement of a fundamental right cannot,

therefore, be a reason to persuade this Court to bypass the usual rule that the

remedy for the same is also primarily to be sought by the petitioner in the statutory

appeal. Unless other exceptional facts exist, this reason would not persuade this

Court to make an exception and entertain a writ petition on that ground. (8) No

question of unconstitutionality of any provision of law has been raised in these writ

petitions.

( 16 ) THE above enumeration of the circumstances which may constitute an

exception to the rule is not obviously exhaustive. It is not possible to envisage a

priori all the categories of circumstances which may constitute such exceptions. It is

entirely in the discretion of this Court to determine in the circumstances and on the

facts of each particular case whether there is sufficient reason to entertain a

particular writ petition on the ground that its circumstances constitute valid

exception to the rule.

( 17 ) WHEN Shri G. C. Sharma, learned counsel for the petitioners was asked as to

why the petitioners did not file appeals under section 253 and simply filed these writ

petitions, he submitted that the petitioners did so because an examination of the

decisions reported in the volumes of the Income Tax Reports would show that

numerous writ petitions challenging orders of reassessments under sections 34 of

the old Act and 147 of the new Act as also orders of rectification under section 35 of

the old Act and 154 of the new Act had been admitted by different High Courts and

decided on merits without dismissing them in limine on the ground that the

alternative remedies of statutory appeals etc. , were not availed of. This may be so.

The explanation is two-fold. Firstly, some of them might have been admitted due to

exceptional circumstances, special features or special reasons so as to constitute

one of the various exceptions, REFERRED TO to above, to the rule that normally an

explanation why a statutory remedy is not availed of must be given before a writ

petition could be entitled to be admitted. Secondly, some writ petitions might have

been admitted without the attention of the Courts being invited to the rule that

normally the petitions must explain why the alternative statutory remedy is not

being availed of once the merits of the cases are considered after admission, it

would have been too late to dismiss such cases on the ground of alternative remedy

not being availed of. None of those, decisions would, therefore, constitute a

sufficient reason why the normal rule should be departed in the two writ petitions

before, us. The rule was established, by a five Judges Bench of the Supreme Court

in Lalji Haridas (supra) and we have been recently reminded in Mattulal v. Radhe

Lal, AIR 1974, S. C. 1596, that in case of conflict between two decisions of the

Supreme Court, the decision of a larger Bench would prevail against the decision of

a smaller Bench even if the latter was subsequent to the former. These decisions

may, however, explain that the petitioners may have thought that their writ petitions

may be admitted as some others had been previously admitted without this Court

raising the preliminary question of alternative remedy as a condition precedent to

admission. The petitioners have not filed appeals under section 253. If they were to

file the appeals now and wish to advance the above reason as being a sufficient

cause for the delay in filing the appeals, we may also mention that on 24th of June

1974 when the writ petitions were first filed, interim stay of operation of the

impugned orders was granted by this Court in both the writ petitions. This stay

would come to an end only by the dismissal of these, writ petitions.

( 18 ) FOR the above reasons, we are of the view that there are no exceptional

circumstances to. persuade us to depart from the normal rule that a writ petition

complaining against the order of an Income Tax Commissioner would not be

entertained in the absence of an adequate explanation why the petitioner does not

avail himself of the appeal provided against the impugned order by the Income Tax

Act.

( 19 ) THE writ petitions are, therefore, dismissed in limine but in the circumstances

without any order as to costs.