1963 PLP 922 (PTD)

ANSARI, C. J. The petitioner has invoked our jurisdiction under Article 226, and complains against the assessment made under the Agricultural Income tax Act, XXII of 1950. The petitioner was served with notice under section 17(2) to furnish his returns, which he did, and thereafter was called upon, under section 18(2), to produce evidence in support of the returns, which requirement was also complied with. The assessing officer, however, found the evidence not satisfactory, and proceeded to levy the tax under section 18(3), which reads as follows : "On the day specified in the notice under subsection (2) or as soon as afterwards, as the case may be, the Agricultural Income-tax Officer, after considering such evidence as such person may produce and such other evidence as that officer may require on the specified points, assess the total agricultural income of the assessee and determine the sum payable by him on the basis of such assessment." The complaint made to this Court is that the petitioner has been afforded no opportunity to meet the material on which the assessment has been made. Now it is well settled that taxing authorities, while passing orders, must observe rules of natural justice ; and one such rule is to afford the party, who is being assessed, with opportunity of showing cause against the material on which the assessment is being rested. This has been laid down in Dhakeswari Cotton Mills Ltd. v. Commissioner of Income tax ((1954) 26 I T R 775 (S C)) and again affirmed in Omar Salay Mohamed Sait v. Commissioner of Income tax ((1959) 37 I T R 151). We feel the aforesaid rules are not confined to proceedings under the Income tax Act, but are of wider application. It is not affirmed that the impugned order has been passed after notice to the writ petitioner of the material on which it rests. It follows that the taxing officer in the case before us has erred in not informing the writ petitioner of the grounds on which the income from the agricultural lands was being fixed, and the assessment therefore stands vitiated, and, therefore, the writ petition should be allowed. The petitioner avers that he has invoked our jurisdiction because he has no right of appeal, the assessment being under section 18(4). We do not think the ground shown for his not filing an appeal is correct. But then the insistence on a party seeking the alternative remedy must not be made an invariable rule of practice, so as to exclude this Court from entertaining petitions even where principles of natural justice have been violated. Were we to adopt such a course, we would run the risk of fettering our jurisdiction by invariable rules of practice, which I have disapproved in another case. Having regard to the circumstances of this case, it is clear that the assessment order is vitiated, and it is but proper that the defect should be cured early. We, therefore, set aside the assessment order, allow the writ petition, but without costs. We further direct the assessing authority to proceed with the assessment according to law and principles of justice stated above. Petition allowed.