Case: Gita Devi Aggarwal Vs. Commissioner of Income Tax, West Bengal and Others

The appellant (hereinafter referred to as " the assessee ") was married in the year 1961 and after the marriage she started business in hessian and silver speculation under the name and style of " Union Trading Co " at premises No. 28, J. N. Mukherjee Road, Howrah. On or about March 3, 1961, the assessee submitted voluntarily returns of income for the assessment years 1953-54 to 1960-61 to the Income-tax Officer, D-Ward, Howrah. On March 18, 1961, the Income-tax Officer made assessment orders for the aforesaid assessment years under the provisions of the Income-tax Act, 1922 (hereinafter referred to as " the Act "). On February 25, 1963, respondent No. 1 issued a notice to the assessee under section 33B of the Act for cancelling the assessments and March 6, 1963, was fixed as the date of hearing. On the date of hearing no one attended on behalf of the assessee and an order was made by the respondent in exercise of the powers conferred under section 33B of the Act cancelling the said assessment orders and directing the Income-tax Officer to make fresh assessments according to law. Being aggrieved by this order the appellant moved the High Court under article 226 of the Constitution for the grant of a writ. It was alleged that no notice was issued in connection with the proceedings under section 33B of the Act and no opportunity was given to the appellant for being heard before making the order. A rule nisi was issued by B.E. Banerjee J. on July 20, 1963, which was made absolute by his order dated July 21, 1964. An appeal was taken by the respondents to the Division Bench of the Calcutta High Court consisting of the Chief justice and B.C. Mitra J. The appeal was allowed by the Division Bench on the ground that due opportunity was given to the assessee for being heard and the order of respondent No. 1 reopening the assessment under section 33B of the Act was not defective in law. This appeal is brought by certificate from the judgment of the High Court dated May 24, 1965

Court's reasoning:
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 been justified in the circumstances of this case in dismissing the writ petition of the appellant in limineit is necessary to point out that section 33B of the Act does not in express terms require a notice to be served as in the case of section 34 of the Act. Section 33B merely requires that an opportunity of being heard should be given to the assessee and the stringent requirement of service of notice under section 34 cannot, therefore, be applied to a proceeding under section 33B of thesection 33B, sub-section (3), of the Act, a right of appeal was available to the appellant and would have been more appropriate, because questions of fact regarding the service of the notice were involved and such questions could have been properly decided in the proceeding of theappeal. 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, 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 thereforThe legal position has been clearly stated by Shah J., speaking for the court, in Shivram Poddar v. Income-taxto the merits of the case also we arc satisfied that the appellant is not entitled to any relief. The High Court has found after examination of the evidence that an opportunity was given to the appellant to be heard before respondent No. 1 made the order under section 33B of the Act. The appellant had declared No. 28, J. N Mukherjee Road, Howrah, to be her address. She had admitted that she had received all notices of demand under section 29 of the Act at the same address. It apppears that the order made under section 33B of the Act was served on the appellant at the same address byt is necessary to point out that section 33B of the Act does not in express terms require a notice to be served as in the case of section 34 of the Act. Section 33B merely requires that an opportunity of being heard should be given to the assessee and the stringent requirement of service of notice under section 34 cannot, therefore, be applied to a proceeding under section 33B of the