DWARKANATH, HINDU UNDIVIDED FAMILY versus INCOME-TAX OFFICER, SPECIAL CIRCLE, KANPUR ANDANR.

Citation: [1965] 3 S.C.R. 536 · Decided: 29-03-1965 · Supreme Court of India · Bench: K. SUBBA RAO · Disposal: Appeal(s) allowed

Cited by 11 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

DWARKANATH, HINDU UNDIVIDED FAMILY 
A 
v. 
INCOME-TAX OFFICER, SPECIAL CIRCLE, KANPUR 
ANDANR. 
Marcil 29, J 965 
(K. SUBBA RAO, J.C. SHAH ANDS. M. SIKRI, JJ.) 
Iudian Income-tax Act (11 of 1922), s. 33A(2)-Commissioner's 
powe-r of rev:sion-lf administrative or quasi-judiciaL--"Deponent's 
own knowledge", meaning of 
Pursuant to the direct10ns of the Income-tax Appe:late Tr;bunal, 
the Income-tax Office;·, determined the assessce's capital gains under 
1. 12B or the Income-tax Act. 19n. He did not, however, make any 
order under s 2.1(31 of the Act, nor did he issue a notice or demand 
under s. 29 or the Act. The assessee filed an application before the 
Commissioner of Income-tax. under s. 33Al:!) of the Act, for rev:s1ng 
the computation made by the Income-tax Officer drav.<ng his zttcn-
tton to a der•s10n of the Bombay High Court in Baiinath s case. (1957) 
31 l.T.R 643. as to how the capital gams should be a"rertained. 
That decision was based upon a consideration of the very docu-
ments vlhich \1.:crc the basis of the asscssees· claim. The Commissionc>r 
dismissed the revision petition as not rnr..intainable. as v.·ell as on 
merits, 1gnor1ng the Bombay decision. Meanv.:h1le, the asscssee filed 
an application requesting the Income-tax Officer to issue a notice of 
demand under s. <!9, to enzble him to file an appeal, but the Officer 
declined lo dv so. The '-SSC'sscc filed a \\·rit application in the lligh 
Court for issu.ng appropriate \\;Tits to the Commissioner and thr 
Income-tax Olfirt'I', but the High Court d»missed it in lim.ne. 
In his appeal to this Court, the asst•ssee contended that (i) the 
High Court erred ii) holding that the aflidav.t filed in support or 
the writ pct.lion was not in accordance \\'Ith law, £nd that even 
if there were any defects the High Court should have given him an 
opportunity to rectt!y them. and (ii) the fl,gh Court erred :n dis-
tinguishing the Bombay decision and in hold:ng that there was no 
force in the rev;sion tiied before the Comrn:ssioner, and that, the 
High Ccurt should have directed the Comm:ssioner to entertain the 
revision and d!spose of it in accordance with !av.· by g1v:ng suitable 
directions to the Income-tax Officer. The respondent ra:sed a preli-
minary objection that as the order of the Comrn:ssioner v.·as an 
admmistrative act, Art. 226 of the Const:tution could net be invoked. 
HELD: (i) As no appeal lay to the App<'llate Assistant Commis-
sioner aga1ns_t the calcu~aLons made by 
the Income-tax Officer, 
the Comm:ssioner had po\vcrs under s. 33A(2) to revis1~ the Income-
tax Officer's order. The jurisdiction cor.ferrcd en the Commissioner 
by the sect\on is a judicial one. The nature of the jurisd;ction and the 
rights decided carry with them necessarily the duty to act judicially 
in dispos:ng of the rev1s1on. Further, the fact that a D1v1sion Bench 
of one of the High Courts in India had taken a view in favour or the 
assessee, indicated that the question raised v.·as arguable.and required 
serious consideration. Therefore_. a '""'rit of certiorari quashing the 
order of the Commissioner dismissing the assessec's revision petition 
should be issued. [544E-G; 548\)] 
' 
638 
B 
c 
D 
E 
F 
G 
H 
A 
ll 
c 
D 
E 
F 
G 
H 
l>WARKANATH V. I. T. O. (Subba /loo, J.) 
537 
Sitalpore Colliery Concern Ltd. v. Union of India, 
(1957) 32 
I.T.R. 26, Additional Income-tax Officer, Cuddapah v. Cuddapah Star 
Transport Co. Ltd. (1960) 40 I.T.R. 200 and Suganchand Saraogi v. 
Comm:ssioner of Income-tax, (1964) 53 I.T.R. 717, overruled. 
Even if the Commissioner onlv made an adminislrative crder in 
refusing' to give any dii-ection to t'he Income-t£.x Officer, the assessee 
would st!ll be entitled to approach the High Court under Art. 226, 
and a writ of mandamus directing the Income~tax Officer to discharge 
his statutory duty of passing the order and issuing the notice of 
demand in accordance with law. should be issued. [546C-E] 
(ii) The affidav:t filed on behalf of the assessee was complete and 
ccmpl'ed with the rules made by the mgh Court. The affidavit spoke 
only of matters which 1,~:ere \vithiil the deponent"s own knowledge, be-
cause, the phrase "deix>nent'sown kno\yledge" is wide enough to com-
prehend the kn a\\· ledge derived from a perusal of relevant documents. 
Even if the affidav;t was defective in any manner, the High Court 
instead of dismissing the petition in !imine should have given the 
assessee, a reasonable opportunity to file a better af

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