1999 PLP 3159 (PTD)

J. Ramamurthi, Senior Advocate (S. Rajappa and S. N. Terdol, Advocates with him) for Respondent. The appellant impugns the order of the Division Bench of the High Court to Himachal Pradesh whereby his writ petition was dismissed. The appellant, an assessee under the Income-tax Act, disclosed income from 14 trucks under a voluntary disclosure scheme. That scheme, it is submitted, made provisions prohibiting the use of disclosure thereunder in subsequent assessment proceedings: The disclosure made by the assessee was accepted on March 31, 1966. On February 28, 1973, the Income-tax Officer issued a reassessment order under section 148 of the Income Tax Act, 1961, pertaining to the assessment years 1959-60 to 1962-63 and brought to tax additional amounts which, he held, were income from trucks. The assessee appealed and contended that the Income-tax Officer had no power to invoke the relevant provisions of the Income-tax Act relating to the said assessment years because his disclosure under the voluntary disclosure scheme were protected. Not only did the Appellate Assistant Commissioner rejected the appeal but, after notice, enhanced the amount found by the Income-tax Officer to have been income which had escaped assessment. The assessee thereupon appealed to the -Income-tax Appellate Tribunal. On May 22, 1975, the assessee wrote to the Tribunal that its representative had suffered a heart attack and sought an adjournment. A reply was received declining the adjournment. It is the case of the assessee that the reply was received too late for him to make alternate arrangements to appear before the Tribunal. Accordingly, on May 3 1, 1975, the Tribunal proceeded ex parte. It deleted the addition made by the Appellate Assistant Commissioner but, it is the assessee's case, ignored his contention that the reassessment proceedings were invalid an application for restoration of the appeals was made to the Tribunal. It was dismissed on August 31, 1976. On October 20, 1976, the assessee asked the Tribunal to refer to the High Court the following questions: "(1) Whether, on the facts and in the circumstances of the case, the order of the Tribunal is legal and in accordance with law? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in upholding the action of the Income-tax Officer under section 148 of the Income Tax Act, 1961?" The Tribunal declined to make the reference. It said that the first question did not arise out of its order, dated August 31, 1976; as far as the second question was concerned, no dispute had been raised before the Tribunal in the appeals "against the action of the -income-tax Officer under section 147. . . " The assessee then made an application to the High Court requesting the High Court to direct the Tribunal to refer the said questions to it, but withdrew the application after some arguments. Thereafter the assessee filed the writ petition before the High Court the order upon which is impugned before us. By the writ petition, the assessee prayed that the Tribunal's order, dated May 31, 1975, as also the reassessment made by the Income-tax Officer for the assessment years 1959-60 to 1962-63 be quashed. On May 13, 1977, the High Court dismissed the writ petition. It noted that what was put in issue before it in the writ petition ought to have been before it by way of reference, but the reference applications had been withdrawn. It is necessary, first, to note there grounds upon which the assessee appealed to be Tribunal. He submitted that the Appellate Assistant Commissioner was not justified in dismissing his appeal and making an enhancement of the amount, that the dismissal was arbitrary and that the order was bad in law and on facts. The validity of the reassessment proceedings was not questioned. Secondly, it was open to the assessee to assail the order of the Tribunal declining the adjournment in the writ petition. This the assessee did not do. Thirdly, it was open to the assessee to assail the correctness of the Tribunal's order on the merits in reference before the High Court, but he chose to withdraw the applications for reference of those questions to the High Court and elected to file the writ petition instead. The High Court was entirely justified in declining to entertain in the writ petition questions that arose out of the Tribunal's order, which the assessee could have brought before the High Court through a reference application. Accordingly, the appeal is dismissed with no order as to costs. M.B.A./3302/FC Appeal dismissed.