Appeal No1539 of 1971
From the Judgment and Order dated 5 8 1969 of the Allahabad High Court in Special Appeal No 5865
BB Ahuja and RN Sachthey for the Appellant
ATM Sampath and Ram Lal for Respondent No 1 215 The Judgment of the Court was delivered by SARKARIA J
This appeal on certificate is directed against an appellate judgment dated August 5 1969 of a Bench of the High Court of Allahabad
It arises as follows Ms SB Singar Singh and Sons hereinafter called the assessee were assessed to Excess Profits tax for the chargeable accounting periods ending March 31 1945 and March 31 1946
under two assessment orders dated August 26 1949
The previous years 193637 was chosen by the assessee as his standard period
 The profits of that year were Rs 38703 
After deducting the profits of the standard year the Excess Profits Tax Officer assessed the tax on the remaining amounts of profits
The Excess Profits Tax thus assessed for the accounting years was to the tune of Rs 1061815 and Rs 48978  respectively
In his orders the assessing Officer said that for reasons detailed in the earlier assessment orders no adjustments are made for capital variations in the standard period and the chargeable accounting period
These reasons as given in the earlier assessment order dated October 30 1947 per taining to the chargeable accounting period ending March 31 1944 were As complete and regular accounts are not maintained by the assessee it is not possible to make any adjustment for variations in average capital which cannot be accurately ascertained
Against the orders of assessment the assessee preferred two appeals on September 24 1949 to the Assistant Appellate Commissioner
By two separate applications dated October 24 1949 the assessee took an additional ground of appeal which obvious ly he had not taken in the original memorandum of appeal that the Excess Profits Tax Officer had erred in not allowing adjustments on account of the increase and decrease of capital in the relevant chargeable accounting period
The assessee added that he was always prepared to file his computa tions of average capital
Dismissing the appeals by his orders dated November 24 1949 the Assist ant Appellate Commissioner negatived the assessee s contention in these terms As in these years no regular accounts have been maintained and it is not possible to make any adjustment for variations in average capital which cannot be exactly ascertained
No figures have been shown to me nor has any exact working been fur nished at this stage
The accounts are left in the same manner as for the earlier years
Profits in the major accounts had to be worked out by the application of a rate to the turnover
I am thus unable to allow this contention
 Aggrieved the assessee carried appeals to the Income tax Appellate Tribunal
In the memoranda of appeals one of the specific grounds taken was that the Excess Profits Tax Officer and the Assistant Appellate Commissioner had erred in not allowing to the assessee proper standard profits in accordance with the standard period subject to the adjust ment on account of the increase and decrease of capital in the relevant chargeable accounting period
 It was reiter ated that the 216 appellant was always prepared to file his computation of average capital
 This ground relating to standard profits was not dis cussed by the Tribunal and no finding was recorded thereon
The Excess Profits Tax Appeals and other Income tax appeals filed by the assessee were heard together by the Tribunal and disposed of by common orders dated February 24 1951
In the Income tax appeals some relief was granted but in the Excess Profits appeals no relief was granted due to the variation of the capital in the chargeable accounting period of 1945 46 and 1946 47
The assessee on July 27 1951 made an application under section 35 of the Income tax Act 1922 for rectification of its order to the Tribunal on grounds other than the one regarding variation in the standard profits due to increase and decrease of the capital
This application was dismissed on August 27 1951 by the Tribunal on the ground that there was no mistake apparent on the record
No grievance was made in this application that the Tribunal did not consider and decide the ground relating to adjustment of standard profits according to variation in capital during the relevant peri od
On March 11 1954 the assessee made a representation to the Central Board of Revenue praying for reopening of the assessments
In this representation also he did not take up Ground No 1
Subsequently however on May 24 1954 he wrote a letter to the Income tax Officer saying that he was sorry to omit one important point  ie Ground No 1 from his representation to the Board and that the Income tax Officer should supplement the same while making his report to the higher authorities 
His representation dated March 11 1954 and the petition dated May 24 1954 both were rejected and the Commissioner communicated those rejec tions to the assessee by a letter dated May 25 1955 saying that he did not see any justification for re opening the assessments which had become final and closed
Thereafter on April 2 1956 the assessee made a second application to the Tribunal which in substance was one for review of its orders dated February 24 1951 contending that Ground No 1 raised in his two appeals relating to the standard profits of the two chargeable accounting periods and pointing out the failure of lower authorities to make necessary adjustments in such profits according to section 6 of the Excess Profits Tax Act hereinafter referred to as Ground No 1  was not disposed of by the Tribunal
It was prayed that the appeals relating to excess profits tax matters which should be deemed to be still pending owing to the non decision of Ground No 1 be disposed of after hear ing the assessee
The Tribunal rejected this contention with the remark that the appeals were decided as early as 24th February 1951 and it is now futile to contend that the matter was pending when the Tribunal had already passed orders and the orders were served on the assessee
 The Tribunal further observed that the absence of a reference to the contention of the assessee regarding the standard profits and the necessary adjustments would not render the Tribunal s order a nullity nor would it mean that the Tribunal had partially disposed of the appeals and some residue is pending
In the alternative it held that even on the assumption that 217 Ground No 1 was argued and was not disposed of by the Tribunal the proper remedy for the assessee was either to apply for rectification under section 35 or to move an applica tion under section 66
The Tribunal refused to treat this application as one for rectification because in its opinion such an application would be much too time barred
In the result the Tribunal dismissed that application by an order dated June 9 1956
The assessee had filed a reference application also under section 661 the Income tax Act in these cases
That application was dismissed by the Tribunal on August 28 1951
The assessee then made applications under section 662 of the Income tax Act before the High Court requesting for reference on certain question of law arising out of the order dated February 24 1951 of the Tribunal
In these applications alsO he did not ask for reference on a question relating to Ground No 1 regarding adjustment of standard profits
These applications were allowed by the High Court by an order dated April 12 1956 whereby the Tribunal was directed to state a case and refer for decision certain questions of law to the High Court
Thereafter during the proceedings before the Tribunal for preparation of the statement of the case the assessee moved an application dated July 23 1957 requesting it to refer the question of adjustment of standard profits on account of increase and decrease in the capital in the relevant periods to the High Court in addition to the questions of law directed by the High Court to be referred to it
This application was rejected for the reason that the question had not been raised in the reference applica tion nor did it arise out of the appellate orders of the Tribunal
On July 24 1957 the Tribunal stated the case and made a reference on the other question to the High Court in compliance with that Court s order dated April 12 1956
On November 4 1968 the assessee filed a writ petition in the High Court praying for a writ of Mandamus requiring the Tribunal to consider his Ground No 1 mentioned in the Excess Profits Tax Appeals Nos 651 and 660 of 1949 and 1950 and his subsequent application dated April 2 1956
The writ petition was heard by a learned single Judge of the High Court who held that while disposing of the appeals it was the duty of the Tribunal to record a finding on Ground No 1 which had been specifically raised in the memoranda of appeals before it that the Tribunal therefore could and should have reviewed its orders and rectified its mistake in the exercise of its inherent powers when that mistake was brought to its notice by the assessee by his application dated April 2 1956 that section 35 of the Income tax Act which provides a period of four years  limitation for seeking rectification of mistakes in assessment orders was not applicable to assessment orders made by the
Tribunal under the Excess Profits Act that consequently the Tribunal was in error in refusing to treat the assessee s application dated April 2 1956as one for rectification of a mistake of the Tribunal on 16 1003 8C176 218 the ground of limitation
In the result the learned Judge set aside the Tribunal s order dated June 9 1956 and directed the Tribunal to dispose of the assessee s applica tion dated April 2 1956 afresh in accordance with law
The Revenue filed a Special Appeal against the order of the learned single Judge before the Appellate Bench of the High Court
The Bench dismissed the appeal and affirmed the findings and orders of the learned single Judge
Hence this appeal
Mr Ahuja appearing for the appellant con tends that the writ petition of the assessee should have been thrown out by the High Court on the preliminary ground that he had not come with clean hands
In this connection Counsel has pointed out several circumstances which according to him belie the main plea of the assessee that the Tribunal had not considered his Ground No 1 although the same was urged before it at the hearing of the appeals
It is stressed that Ground No 1 was not original ly taken by him in the grounds of appeal filed before the Assistant Appellate Commissioner al though subsequently in the Additional grounds filed about one month after the institution of the ap peals he as an after thought did introduce Ground No 1 that he did not make any grievance whatever on the score of Ground No 1 in his appli cation for rectification of the Tribunal s orders filed on July 27 1951 that for more than 5 years after the announcement of the appellate orders of the Tribunal he made no application to the Tribu nal for review and rectification of its appellate orders in relation to Ground No 1 that the assessee delayed the making of the application dated April 2 1956 presumably with a view to ensure that at the time of its presentation none of the members of the Tribunal who had originally decided the assessee s appeals was there to hear the application that even in this inordinately delayed application review and rectification was not asked for in a straight forward manner but it was disguised as an application for decision of the appeals which on account of non decision of Ground No 1 were alleged to be still pending that the writ petition was filed after an abnormal delay of ten years that a perusal of the assessment orders made by the Excess Profits Tax Officer and the Assistant Appellate Commissioner and even the memoranda of appeals filed before the Tribunal shows that at no stage the assessee furnished complete accounts or even a statement showing variation in the capital during the relevant peri ods
It is emphasised that all that the assessee said in the memoranda of appeals was that he was prepared to furnish a statement of such computa tion and accounts
It is further pointed out that no certificate of Shri Surinderjit Singh Advocate who is supposed to have argued the appeals before the Tribunal was filed
It is maintained that the only reasonable inference from these circumstances was that Ground No 1 was not pressed or argued at all by Shri Surinderjit Singh before the Tribu nal who consequently did not think it necessary to deal with it
Mr Sampath appearing for the assessee respondent has not been able to deny the existence of the circumstances pointed out by Mr 219 Ahuja
His argument is that in the affidavit accompanying the writ petition the deponent had sworn that Ground No 1 was in fact argued before the Tribunal and that this sworn statement had been believed by the High Court
This being the case it is argued this Court should not re open the question as to whether Ground No 1 was in fact argued or not before the Tribunal
According to MrSampath over 5 years  delay in making the application dated April 2 1956 partly stood explained by the circumstance that he had made a representation to the Board supplemented by the assessee s letter of May 24 1954 to the Income tax Officer seeking relief on the basis of Ground No 1
We find a good deal of force in the submissions made by Mr Ahuja
The sheet anchor of the assessee s case in the writ petition was that at the hearing of the appeals his Counsel had argued Ground No 1 set out in the memoranda of appeals but the Tribunal did not consider it at all
The question whether or not this Ground had been argued was one of fact
The tell tale circumstances enumerated by Mr Ahuja unerringly lead to the conclusion that in all proba bility Ground No 1 was not argued by the Counsel possibly because he was aware that in the absence of a complete statement of accounts showing variations in the capital during the relevant periods a contention rounded on Ground No 1 would be an exercise in futility
It is noteworthy that at no stage before the Revenue authorities or the Tribunal did the assessee categorically say that he had actually produced a complete statement of accounts and computation of the increase and decrease in capital
All that he said in his Additional Grounds of appeal before the Assistant Appellate Commissioner and the Appellate Tribunal in Ground No 1 was that he was prepared to file such a statement
Shri Surinderjit Singh Counsel who argued the appeals has not thought it fit to certify that Ground No 1 was actually argued and not abandoned by him
The affida vit of another person who could not be the best informed person on this point was of little value and could hardly displace the irresistible inference arising from the sur rounding circumstances and the conduct of the assessee namely that his Counsel had not argued on Ground No 1 at all and had thus given it up
In the light of what has been observed above we are of opinion that the High Court could not justifiably interfere in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution with the appellate orders of the Tribunal
In any case the question as to whether the omission to record a finding on Ground No I by the Tribunal was due to the failure of the appellant to urge that ground or due to a lapse on the part of the Tribunal which de served rectification was a matter entirely for the author ities under those Taxation statutes
It will be well to recall once more what this Court speaking through JC Shah J as he then was had stressed in Shivram Poddar vs Income tax Officer1 Resort to the High Court in exercise of its extraordi nary jurisdiction conferred or recognised by the Constitu tion in matters relating to assessment levy and collection of income tax may be permitted only when questions of infringe ment of fundamental rights arise or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess
In attempting to bypass the provisions of the Income tax Act by inviting the High Court to decide questions which are primarily within the jurisdiction of the revenue authorities the party approaching the court has often to ask the Court to make assumptions of facts which remain to be investigated by the revenue authorities
In the instant case the High Court had assumed juris diction on the assumption that a certain ground had been urged before the Income tax Appellate Tribunal which had arbitrarily refused to consider the same and record a find ing thereon
This assumption in our opinion stood thor oughly discounted by the concomitant circumstances of the ease including the dilatory and questionable conduct of the assessee
This was therefore not a fit ease for the exer cise of its special jurisdiction under Article 226 by the High Court
Accordingly on this short ground we allow the appeal and dismiss the writ petition
As the appeal succeeds on a preliminary ground we do not feel it necessary to express any opinion on the question as to whether or not the Appel late Tribunal under the Excess Profits Tax Act has statutory or inherent power to review and rectify mistakes in its orders
The assessee shall pay one set of the costs of the appellant
PBR Appeal allowed


Summary:
Since the assessee had not maintained complete and regular accounts for the purpose of Excess Profits tax the Excess Profits Tax Officer assessed tax on the basis of accounts of certain previous years chosen by the assessee as his standard period pointing out that because of this position it was not possible to make any adjustment for variations in average capital
The Assistant Appellate CommisSioner upheld the assessment order
In appeal to the Appellate Tribunal one of the specific grounds taken by the assessee was that the Excess Profits Tax Officer and the Assistant Appellate Commissioner had erred in not allowing proper standard profits in accordance with the standard period subject to the adjustment on account of increase and decrease of capital in the relevant chargeable accounting period and that they were prepared to file computation of average capital
Without discussing the ground relating to the standard profits the Tribunal disposed of the appeals
The assessee s second application alleging that the ground relating to the standard profits was not disposed of by it was rejected by the Tribunal
In an application under section 662 of the Income Tax Act before the High Court the assessee did not ask for a reference on this ground
But during proceedings for preparation of statement of case the assessee s application requesting the Tribunal to refer this ground to the High Court was rejected by it
The assessee s petition for a writ of Mandamus requiring the Tribunal to consider the ground relating to standard profits was allowed by the High Court
Allowing the Department s appeal to this Court HELD The High Court could not justifiably interfere in the exercise of its extraordinary jurisdiction under article 226 of the Constitution with the appellate orders of the Tribunal
The question as to whether the omission to record a finding on Ground No 1 by the Tribunal was due to the failure of the appellant to urge that ground or due to a lapse on the part of the Tribunal which deserved rectifica tion was a matter entirely for the authorities under the statute to decide
219 G Shivram Poddar vs Income tax Officer 1964 51 ITR 823 829 SC applied
In the instant case the High Court had assumed jurisdic tion on the assumPtion that a certain ground had been urged before the Tribunal which had arbitrarily refused to consid er the same and record a finding thereon
This assumption stood thoroughly discounted by the concomitant circumstances of the case including the dilatory and questionable conduct of the assessee
This was not a fit case for the exercise by the High Court of its  special jurisdiction under article 226
220 C