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PETITIONER: DWARKANATH, HINDU UNDIVIDED FAMILY

       Vs.

RESPONDENT: INCOME-TAX OFFICER, SPECIAL CIRCLE, KANPUR

DATE OF JUDGMENT: 29/03/1965

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. SHAH, J.C. SIKRI, S.M.

CITATION:  1966 AIR   81            1965 SCR  (3) 536  CITATOR INFO :  R          1976 SC 578  (11)  RF         1980 SC1579  (25)  R          1985 SC 167  (36,38)  RF         1986 SC1272  (83)  R          1987 SC 537  (18)  F          1989 SC1607  (18)

ACT: Indian Income-tax Act (11 of 1922), s. 33A(2)-Commissioner’s power       of      revision-If      administrative       or quasi-judicial--"Deponent’s own knowledge", meaning of.

HEADNOTE: Pursuant  to  the  directions of  the  Income-tax  Appellate Tribunal, the Income-tax Officer, determined the  assessee’s capital gains under s. 12B of the Income-tax Act, 1922.   He did not, however, make any order under s. 23(3) of the  Act, nor did he issue a notice of demand under s. 29 of the  Act. The assessee filed an application before the Commissioner of Income-tax,  under  s. 33A(2) of the Act, for  revising  the computation  made  by  the Income-tax  Officer  drawing  his attention  to  a  decision  of  the  Bombay  High  Court  in Baijnath’s case, (1957) 31 I.T.R 643, as to how the  capital gains should be ascertained.  That decision was based upon a consideration of the very documents which were the basis  of the  assessees’  claim.   The  Commissioner  dismissed   the revision petition as not maintainable, as well as on merits, ignoring the Bombay decision.  Meanwhile, the assessee filed an application requesting the Income-tax Officer to issue  a notice  of  demand  under s. 29, to enable him  to  file  an appeal,  but  the Officer declined to do so.   The  assessee filed  a  writ  application in the High  Court  for  issuing appropriate  writs  to the Commissioner and  the  Income-tax Officer, but the High Court dismissed it in limine. In his appeal to this Court, the assessee contended that (i) the High Court erred in holding that the affidavit filed  in support of the writ petition was not in accordance with law, and  that  even  if there were any defects  the  High  Court should  have given him an opportunity to rectify  them,  and (ii)  the  High  Court erred in  distinguishing  the  Bombay decision  and  in  holding that there was no  force  in  the

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revision  filed before the Commissioner, and that, the  High Court should have directed the Commissioner to entertain the revision and dispose of it in accordance with law by  giving suitable   directions  to  the  Income-tax   Officer.    The respondent raised a preliminary objection that as the  order of  the Commissioner was an administrative act, Art. 226  of the Constitution could not be invoked. HELD:(i)  As no appeal lay to the  Appellate  Assistant Commissioner against the calculations made by the Income-tax Officer,  the  Commissioner had powers under  s.  33A(2)  to revise  the  Income-tax Officer’s order.   The  jurisdiction conferred  on the Commissioner by the section is a  judicial one,  The nature of the jurisdiction and the rights  decided carry  with them necessarily the duty to act  judicially  in disposing  of  the  revision.   Further,  the  fact  that  a Division Bench of one of the High Courts in India had  taken a  view  in  favour  of the  assessee,  indicated  that  the question   raised   was  arguable   and   required   serious consideration.  Therefore, a writ of certiorari quashing the order of the Commissioner dismissing the assessee’s revision petition, should be issued. [544E-G; 548D] 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. Commissioner of Income-tax, (1964)  53 I.T.R, 717, overruled. Even  if the Commissioner only made an administrative  order in  refusing,  to  give  any  direction  to  the  Income-tax Officer,  the assessee would still 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  affidavit  filed  on behalf of  the  assessee  was complete and compiled with the rules made by the High Court. The  affidavit spoke only of matters which were  within  the deponent’s  own knowledge, because, the  phrase  "deponent’s own  knowledge" is wide enough to comprehend  the  knowledge derived  from a perusal of relevant documents.  Even if  the affidavit  was  defective  in any  manner,  the  High  Court instead  of  dismissing the petition in limine  should  have given  the  assessee,  a reasonable opportunity  to  file  a better affidavit. [547F-G, H] (iii)The  High Court was also in error in holding  that the decision of the Bombay High Court was given on different facts,  for the facts in both cases were the same  and  they arose out of the same transaction. [548B-C]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 62 of 1964. Appeal  by special leave from the judgment and decree  dated July  28,  1959  of  the  Allahabad  High  Court  in   Civil Miscellaneous Writ No. 2071 of 1959. A.   V. Viswanatha Sastri, Rameshwar Nath, S. N. Andley and P.   L. Vohra, for the appellant. Gopal Singh and R. N. Sachthey, for the respondents. The Judgment of the Court was delivered by Subba  Rao,  J.  The facts leading up  to  this  appeal  may briefly  be  narrated.   Gujarat  Cotton  Mills  Co.   Ltd., hereinafter called the Company, is a limited company  having its  registered office at Ahmedabad.  In the year  1938  the Company  appointed  Messrs.   Pira Mal Girdhar  Lal  &  Co.,

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hereinafter called the Agency Firm, as its Managing  Agents. On  February 28, 1938, a formal agreement was  entered  into between  the Company and the Agency Firm.  The  said  Agency Firm  was  formed under an instrument of  partnership  dated February   26,  1938,  with  11  partners-3  of   them   are compendiously  described  as  the  "Bombay  Group"  and  the remaining  8  of them as the "Kanpur Group".   With  certain variations in the constitution of the Agency Firm, the  said firm  functioned as the Managing Agents of the Company  till September  1946.   In  September 1946  shareholding  of  the partners of the Agency Firm in the Company was as follows: Kanpur Group                          32,500 shares. Bombay Group                          26,362 shares. 538 Because  of certain differences between the  partners,  they decided  among  themselves  to  sell  their  shares  and  to surrender their Managing Agency.  On September 7, 1946,  the said 11 partakers entered into an agreement with the firm of Messrs.  Chhuttu Ram & Sons of Bihar, hereinafter called the Purchaser  Firm.  Under that agreement it was provided  that 65012  shares  held by the 11 partners of the  Agency  Firm, directly  or through their nominees, should be sold  to  the Purchaser Firm at Rs. 65 per share and that the Agency  Firm should  before  November  15, 1946, resign  its  ’office  of Managing  Agency of the Company.  It was a condition of  the agreement  that  it  should have operation  only  after  the Purchaser  Firm  or  its  nominees  were  appointed  as  the Managing  Agents of the Company.  On October 30,  1946,  the Company  held  its  General Body Meeting  and  accepted  the resignation  of  the Agency Firm and by  another  resolution appointed  the Purchaser Firm as the Managing Agents in  its stead.   In terms of the agreement, the Purchaser Firm  paid for  the entire shareholding of the partners of  the  Agency Firm  at  Rs.  65  per share.   The  appellant  is  a  Hindu undivided  family.   Its karta was one  Dwarkanath  and  the present karta is his son Ramji Prasad.  The said family  was ’one of the II partners of the Agency Firm belonging to ’the Kanpur  Group.  Out of the total shareholding the  appellant held  11,230  shares.  It received the price  for  the  said shares at the rate of Rs. 65 per share.  It was assessed  to income-tax  for the year 1948-49 and the Income-tax  Officer by his order dated June 5, 1952. assessed the excess  amount of  Rs.  2,98,909 realized by the assessee  under  the  head "income  from business", i.e., the difference in the  amount for which it purchased the shares and that for which it sold them.   On appeal, the Appellate Assistant  Commissioner  of Income-tax  confirmed  the  same.  On  further  appeal,  the Income-tax  Appellate Tribunal, Delhi Bench, held  that  the said  receipt  bad to be taxed as "capital gains"  under  s. 12B.  of the Income-tax Act, 1922, and directed the  Income- tax Officer to modify the assessment in accordance with  its order.  The assessee made an application under s. 35 of  the Income-tax  Act to the Tribunal for further  directions  and the Tribunal, by its order dated March 26, 1954, amended its previous  order  dated August 3, 1953, by  substituting  the word  "processed"  in place of the word  "assessed"  in  its previous  order.   The assessee raised  various  contentions before  the Income-tax Officer, inter- alia, that  the  said income  was  not  liable to be taxed under  s.  12B  of  the Income-tax  Act under the head "capital gains" and  that  in any  case in order to determine the amount of capital  gains the  market  value of the shares only should be  taken  into consideration,  as  the price of Rs. 65 per  share  included also  the  consideration  for  the  relinquishment  of   the managing agency rights.  The Income-tax Officer rejected the

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said  contentions  of  the assessee.   He  redetermined  the assessable income under the heading "capital gains" but  did not  issue a notice of demand as prescribed in s. 29 of  the Income-tax Act.  After making an infructuous attempt to  get suitable directions       539 from the Appellate Tribunal, on March 5, 1956, the  assessee filed an application before the Income-tax Officer to  issue a notice of demand under s. 29 of the Income-tax Act so that it   might  prefer  an  appeal  against  the  same  to   the appropriate authority. But the Income-tax Officer refused to issue  any  such notice. The assessee  preferred  an  appeal against  that order to the Appellate Assistant  Commissioner under  s. 30 of the  Income-tax  Act and that was  dismissed on   March  8,  1957,  on  the  ground  that  it   was   not maintainable. Meanwhile on September 27, 1956, the appellant filed  an application before the Commissioner of  Income-tax under s. 33A(2) of the Income-tax Act for revising the order of  the   Income-tax Officer dated September  28,  1955.  On March  28,  1959, the Commissioner  dismissed  the  revision petition  on two grounds, namely, (1) that it was not  clear whether the revision petition under s. 33A of the Income-tax Act was maintainable, and (ii) on merits. It may be  noticed that  long before the revision petition was  dismissed,  the appeal  filed  by  the assessee against  the  order  of  the Income-tax  Officer to the Appellate Assistant  Commissioner was  dismissed on March 8, 1957. On November 18,  1957,  the attention  of  the Commissioner was also drawn to  the  fact that  the  Bombay High Court in the case of a  reference  to that Court at the instance of the Bombay Group held that the market   value  of  the   shares   should  be   taken   into consideration  to ascertain the excess realized on the  sale of  the  shares of the assessee for the purpose  of  capital gains  tax.   The   Commissioner ignored  that  decision  in dismissing  the revision. Thereafter, on July 28, 1959,  the assessee filed Writ Application No. 2071 of 1959 in the High Court  of Judicature at Allahabad, inter alia, for a writ of certiorari or any other direction or order of like nature to quash  the  order of the Income.tax  Commissioner,  Lucknow, dated  March  28,  1959, and the  Order  of  the  Income-tax Officer  dated  September  28,  1955,  and  for  a  writ  of mandamus   or   any  other  order or direction of  the  like nature directing the  Commissioner to pass a fresh order  in accordance  with the decision of the Bombay High  Court  and direct  the  Income-tax  Officer to pass a  fresh  order  in accordance  with  law  and to issue a notice  of  demand  as required  by  s. 29 of the Income-tax Act.  The  High  Court dismissed  the   said application in limine  mainly  on  the following three grounds: (1) the affidavit filed in  support of  the writ petition was highly unsatisfactory and  on  the basis of such an affidavit it was not possible to  entertain the  petition;  (2) the facts given in  the  affidavit  were incomplete  and confused; and (3) even on merits, there  was no force in the revision petition Hence the appeal.      Mr.  A.V.  Viswanatha Sastri, learned counsel  for  the appellant, contended that the affidavit filed in support  of the  petition was in accordance with law, and that, even  if there  were  any  defects, the Court should  have  given  an opportunity  to the appellant to rectify them; and that  the High Court should have held 540 that  the  revision  against the  order  of  the  Income-tax Officer to the Commissioner was maintainable under s. 33A of the  Act, as the appeal against that order to the  Appellate Assistant  Commissioner  was not maintainable  and  that  it

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should  have  directed  the Commissioner  to  entertain  the revision and dispose of it in accordance with law  directing the Income-tax Officer to issue a notice of demand under  s. 29 of the Income-tax Act. He further contended that the High Court  went  wrong in holding that the facts in  the  Bombay decision were different from those in the present case,  for the  facts in both the cases were the same and in fact  they arose  out of the same transaction, namely, the sale of  the shares by the Agency Firm to the Purchaser Firm.     Mr.   Gopal   Singh, learned counsel  for  the  Revenue, while  supporting  the  order of the  High  Court  raised  a preliminary  objection,  namely,  that  the  order  of   the Commissioner  under  s.  33A  of  the  Income-tax  Act   was administrative  act  and, therefore, no writ  of  certiorari would  lie to the High Court to quash that order under  Art. 226 of the Constitution.     We shall first take the preliminary objection, for if we maintain it, no other question will arise for consideration. Article 226 of the Constitution reads:       "   .........   every  High Court  shall  have  power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in   appropriate  cases  any  Government,    within    those territories directions, orders or writs, including writs  in the  nature  of habeas corpus,  mandamus,  prohibition,  quo warranto and certiorari, or any of them, for the enforcement of  any  of the rights conferred by Part III  and  for   any other purpose." This article is couched in comprehensive phraseology and  it exfacie  confers  a wide power on the High Courts  to  reach injustice   wherever   it  is   found.   The    Constitution designedly used a wide language in describing the nature  of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in  the nature  of prerogative writs as understood in  England;  but the  scope of those writs also is widened by the use of  the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart. High Courts can  also issue directions. orders or writs other  than  the prerogative  writs. It enables the High Courts to mould  the reliefs to meet the peculiar and complicated requirements of this  county. Any attempt  to equate the scope of the  power of  the High Court  under Art. 226 of the constitution  with that of the English Courts to 541 issue  prerogative  writs is to  introduce  the  Unnecessary procedural   restrictions   grown  over  the  years   in   a comparatively small country like England with a unitary form of  government into. a  vast country like India  functioning under  a federal structure. Such a construction defeats  the purpose  of the article itself. To say this not to say  that the High Courts can function arbitrarily under this article. Some limitations are implicit in the article and others  may be  evolved to direct the article through defined  channels. This  interpretation  has  been accepted  by  the  Court  in Basappa v. Nagappa(1) and P.J. Irani v. State of Madras(2). But  we are satisfied that this case falls  directly  within the confines of the certiorari jurisdiction as understood in England. It is well settled that a writ of certiorari can be issued only to quash a judicial or a quasi-judicial act  and not  an administrative act. It is, therefore,  necessary  to notice  the distinction between the said two  categories  of acts. The relevant criteria have been laid down with clarity by Atkin, L.J., in King  v.  Electricity   commissioners(3),

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elaborated by Lord Justice Scrutton in Rex v.  London County Council(4)  and  authoritatively  restated  in  Province  of Bombay  v.  Kusaldas S. Advani(5). The said  decisions  laid down  the following conditions to be complied with: (1)  The body of persons must have legal authority; (2) the authority should  be   given  to  determine  questions  affecting  the rights  of subjects; and (3) they should have a duty to  act judicially.  So  far  there is no dispute.  But  in  decided cases, particularly in India, there is some mixing up of two different   concepts,  viz.,  administrative  tribunal   and administrative  act.  The  question  whether  an  act  is  a judicial  act or an administrative one arises ordinarily  in the context of the proceedings of an administrative tribunal or  authority. Therefore, the fact that an order was  issued or  an act emanated from an  administrative  tribunal  would not make it anytheless a quasi-judicial act if the aforesaid tests  were satisfied. The concept of a  quasi-judicial  act has  been conceived and developed by English Judges  with  a view  to keep the administrative tribunals  and  authorities within  bounds.  Parker, J., in R.V.  Manchester  Legal  Aid Committee(1)  brought out the distinction  between  judicial and  administrative  acts  very  vividly  in  the  following passage:                     "The  true view, as it seems to  us,  is               that  the duty to act judicially may arise  in               widely different circumstances which it  would               be  impossible, and, indeed,  inadvisable,  to               define  exhaustively   .......  When,  on  the               other   hand,   the  decision is  that  of  an               administrative  body and is actuated in  whole               or in part by questions of policy, the duty to               act  judicially  may arise in  the  course  of               arriving  at that decision. Thus, if in  order               to arrive at the decision, the                (1)  [1955] 1 S.C.R. 250. (2)  [1962] 2 S.C.R. 169.                (3)  [1924] 1 K.B. 171.                (4)  [1931] 2 K.B. 215.                (5)  [1950] S.C.R. 621.                (6)  [1952] 2 Q.B. 413, 428.               542               body  concerned had to consider proposals  and               objections  and consider evidence, then  there               is the duty to act judicially in the course of               that inquiry  ...........................               Further,    an   administrative     body    in               ascertaining facts or law may be under a  duty               to  act  judicially notwithstanding  that  its               proceedings  have none of the  formalities  of               and are not in accordance with the practice of               a court of law  ..............................               If  on the other hand, an administrative  body               in  arriving at its decision at no  stage  has               before  it any form of his and throughout  has               to  consider  the question from the  point  of               view  of policy and expediency, it  cannot  be               said  that it is under a duty at any stage  to               act judicially".               The  relevant principles have been  succinctly               stated  in  Halsbury’s Laws  of  England,  3rd               Edn., Vol. 11, at pp. 55 and 56 thus:--               It is not necessary that it should be a court:               an  administrative body in ascertaining  facts               or  law may be under a duty to act  judicially               notwithstanding that its proceedings have none

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             of   the  formalities  of,  and  are  not   in               accordance  with the practice of, a  court  of               law.  It is enough if it is exercising,  after               hearing  evidence, judicial functions  in  the               sense  that  it  has  to  decide  on  evidence               between  a proposal and an opposition. A  body               may   be  under  a  duty,  however,   to   act               judicially (and subject to control by means of               these orders) although there is no form of lis               inter  partes before it: it is enough that  it               should have to determine a question solely  on               the  facts of the particular case,  solely  on               the  evidence before it, apart from  questions               of    policy   or    any   other    extraneous               considerations".               "Moreover   an  administrative   body,   whose               decision  is actuated in whole or in  part  by               questions  of policy, may be under a  duty  to               act  judicially in the course of  arriving  at               that  decision   .........  If, on  the  other               hand,  an administrative body in  arriving  at               its  decision  has before it at no  stage  any               form of lis and throughout has to consider the               question from the point of view of policy  and               expediency, it cannot be said that it is under               a duty at any time to act judicially". These  are  innumerable  decisions of this  Court  where  it issued a writ of certiorari to quash a quasi-judicial act of an  administrative  tribunal or authority.  This  Court  set aside  the  order  of the Andhra  Pradesh  State  Government approving the  order  of  nationalisation of road  transport made  by  the Andhra Pradesh Road Transport  Undertaking  in Gullapalli  Nageswara  Rao  v.  Andhra  Pradesh  State  Road Transport  Corporation(1),  the order of the Examination (1) [1959] Supp. 1 S.C.R. 319. 543 Committee  cancelling the examination results on the  ground that  it  did not give opportunity to the  examinees  to  be heard before the order was made in Board of High School  and Intermediate  Education,  U.P., Allahabad v.  Ghanshyam  Das Gupta(1),  and  the  order of the Revenue Board  made  in  a revision   petition   against  the  order  of   the   Deputy Commissioner  impounding  the document without  hearing  the aggrieved  party in The Board of Revenue, U.P.  v.  Sardarni Vidyawati(2).   In   all  these cases  the  Government,  the Examination   Committee  and  the  Board  of  Revenue   were administrative  bodies,  but the acts impugned  were  quasi- judicial  ones,  for they had a duty to  act  judicially  in regard thereto. The law on the subject may be briefly stated thus:  The  provisions  of  a  statute  may  enjoin  on   an administrative    authority  to  act   administratively   or judicially.  If the statute expressly imposes a duty on  the administrative  body to act judicially, it is a clear   case of a judicial act. But the duty to act judicially may not be expressly conferred but may be inferred from the  provisions of  the  statute.  It may be gathered  from  the  cumulative effect  of the nature of the rights affected, the manner  of the  disposal  provided,  the  objective  criterion  to   be adopted,  the  phraseology  used, the nature  of  the  power conferred  or  the duty imposed on the authority  and  other indicia  afforded  by the statute. In short, a duty  to  act judicially  may arise in widely different circumstances  and it is not possible or advisable to lay down a hard and  fast rule or an inflexible rule of guidance.                   With  this background let us look  at  the

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             relevant provisions of the Income-tax Act.                     Section 33A(2). The Commissioner may, on               application by an assessee for revision of  an               order under this  Act passed by any  authority               subordinate  to the Commissioner, made  within               one year from the date of the order (or within               such  further period as the  Commissioner  may               think fit to allow on being satisfied that the               assessee  was  prevented by  sufficient  cause               from   making  the  application  within   that               period), call for the record of the proceeding               in which such order was passed, and on receipt               of  the record may make such inquiry or  cause               such   inquiry to be made,    and, subject  to               the  provisions of this Act, pass  such  order               thereon, not being an order prejudicial to the               assessee, as he thinks fit.                     Provided that the Commissioner shall not               revise any order under this sub-section if---                   (a)  where an  appeal  against  the  order               lies  to the Appellate Assistant  Commissioner               or to the Appellate Tribunal but has not  been               made, the time within which such appeal may be               made has not expired, [1962] Supp. 3 S.C.R. 36.     (2) [1962] Supl. 3 S.C.R. 50’ 544 or, in the case of an appeal to the Appellate Tribunal,  the assessee has not waived his right of       appeal, or   (b) where an appeal against the order has been made to the Appellate   Assistant  Commissioner,  the appeal is  pending before the Appellate  Assistant Commissioner, or (c) the order has been made the subject of an appeal to  the Appellate Tribunal. Provided   further  that  an  order  by  the    Commissioner declining  to interfere shall be deemed not to be  an  order prejudicial to the assessee. Under  this  sub-section  an  assessee  may  apply  to   the Commissioner  for revision of an order under the Act  by  an authority  subordinate   to him. Such application  shall  be filed within one year from the  date of the order or  within such  further period as the  Commissioner may think  fit  to allow.  On receipt of such an application  the  Commissioner may  call  for the record of the proceeding  in  which  such order  was made and make such enquiry or cause such  enquiry to  be made. After such enquiry he can make an order not  to the  prejudice  of  the assessee but to  his  benefit.  Such revision  is not maintainable if the time prescribed for  an appeal against such an order to the appropriate  authorities has  not  expired or if an appeal against such an  order  is pending before the appropriate authorities. The scope of the revision  is,  therefore, similar to that  prescribed  under different  statutes. Prima facie the jurisdiction  conferred under s. 33A(2) of the Act is a judicial one. The order that is brought before the Commissioner affects the right of  the assessee. It is implicit in revisional jurisdiction that the revising authority shall give an opportunity to the  parties affected to put forward their case in the manner prescribed. The nature of the jurisdiction and the rights decided  carry with  them  necessarily  the  duty  to  act  judicially   in disposing  of the revision. The fact that  the  Commissioner cannot  make an order to the prejudice of an  assessee  does not possibly change the character of the proceeding.  Though the  Commissioner may not change the order of  the  inferior authority to the prejudice of the assessee, he may not  give the full relief asked for by the assessee.

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   But   it  is  said  that  the  Commissioner   exercising jurisdiction under s. 33A of the Act is only functioning  as an   administrative  authority  and  all  his  orders   made thereunder partake that character. Reliance is placed on the decision  of  the  Judicial  Committee  in  Commissioner  of Income-tax,  Punjab,  N.W.F. & Delhi  Provinces,  Lahore  v. Tribune Trust, Lahore(1). There, the Judicial Committee held that the assessments, which were duly made by the Income-tax (1947) L.R. 74 I.A. 306. 317, 318.          545. Officer  in  the  proper exercise of his duty,  were  not  a nullity, but were validly made and were effective until they were  set  aside; and that a reference to the High Court did not  lie  from an order under s. 33 of the Act  unless  that order was  prejudicial to the assessee in the sense that  he was in a worse position than before the order was made.  But the Board incidentally made the following observations: "On the contrary, s. 33 follows a number of sections   which determine  the rights of the assessee and is itself, as  its language    clearly   indicates,   intended    to    provide administrative machinery by which a higher executive officer may  review  the  acts  of his  subordinates  and  take  the necessary  action  on  such review. It appears  that,  as  a matter  of convenience, a practice has grown up under  which the  commissioner  has  been  invited to  act  "of  his  own motion", under the section, and where this occurs a  certain degree  of formality has been adopted. But the  language  of the  section does not support the contention, which lies  at the  root  of  the  third  question  and  is  vital  to  the respondent’s case, that it affords a claim to relief". Continuing the same idea that Board observed: "The  Commissioner  may  act under s.  33  with  or  without invitation   of  the  assessee:   if  he  does  so   without invitation,  it is clear that, if he does nothing to  worsen the  position  of the assessee, the latter  can  acquire  no right:  the  review may be a purely departmental  matter  of which  the assessee knows nothing. If, on  the  other  hand, the commissioner acts at the invitation of the assessee  and again  does  nothing  to worsen his position,  there  is  no justification for giving him a new right of appeal". These  observations were made in the context of  a  question whether  a reference would lie to the High Court against  an order  of  the Commissioner. But the  question  whether  the order  of  the  Commissioner under s. 33 of the  Act  was  a judicial or a quasi-judicial act subject to the  prerogative writ  of certiorari was neither raised nor decided  in  that case:  that question was not germane to the  enquiry  before the   Board, for the appeal did not arise out of  any  order made  in  a  writ  of  certiorari.  Section  33,  which  was considered by the Privy Council was repealed by the Amending Act of 1939; but by Act XXIII of 1941 the revisional  powers of  the  Commissioner were restored. Section 33-A  took  the place  of s. 33 with certain modifications. Sub-section  (1) of s. 33A provided for the Commissioner acting suo motu; and sub-s. (2)thereof, on the application of the assessee. Under this  section the Commissioner can exercise  the  revisional jurisdiction  subject to the  conditions mentioned  therein. While s. 33 only provided for the  suo motu exercise of  the jurisdiction,  s.  33A enables an assessee to apply  to  the Commissioner   to  revise  the  order  of  his   subordinate officer. 546 Some of the High Courts, under the impression that the Privy Council  held  that  the  act of  the  Commissioner  was  an administrative  one, ruled that a writ of certiorari.  would

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not lie to quash the order of the Commissioner under s.  33A of the Act: see Sitalpore Colliery Concern Ltd. v. Union  of India(1);   Additional  Income-tax  Officer,   Cuddapah   v. Cuddapah Star Transport Co. Ltd.(2); and Suganchand  Saraogi v.  Commissioner  of Income-tax, Calcutta(3). They  did  not consider  the scope of the revision before the  Commissioner and  whether the orders made thereunder satisfied  the  well settled tests of "judicial act" laid down by this Court.  In our view, for the reasons mentioned by us earlier, the  said judgments were decided wrongly.     That  apart,  on the assumption that the  order  of  the Commissioner under s. 33-A of the Act was an  administrative one, the respondent would not be in a better position.  What the  appellant complains is that the Income-tax  Officer  in terms of s. 29 of the Act is under an obligation to issue  a demand  notice. If the said contention was correct,  he  did not discharge the duty imposed on him by the statute. If the Commissioner  only made an administrative order in  refusing to  give any direction to the Income-tax Officer,  it  would not   exonerate  the  said  officer  from  discharging   his statutory  duty. In that event the assessee would  certainly be entitled to approach the High Court under Art. 226 of the Constitution  for the issue of a writ of mandamus  or  other appropriate direction to the Income-tax Officer to discharge his  statutory duty. We, therefore, reject  the  preliminary objection of the respondents.     The   High Court mainly dismissed the writ  petition  on the  ground that the affidavit flied in support of the  writ petition was highly unsatisfactory and that on the basis  of such  an  affidavit  it was not possible  to  entertain  the petition. In exercise of the powers conferred by Art. 225 of the  Constitution  and of other powers enabling it  in  that behalf  the  High  Court of Allahabad framed  the  Rules  of Court.  Chapter XXII thereof deals with the procedure to  be followed  in respect of a proceeding under Art. 226  of  the Constitution  other  than  a writ in the  nature  of  habeas corpus. The relevant rule is sub-r. (2) of r. 1 of Ch. XXII, which reads:               "The  application shall set out  concisely  in               numbered  paragraphs the facts upon which  the               applicant  relies and the grounds  upon  which               the Court is asked to issue a direction, order               or  writ,  and shall conclude  with  a  prayer               stating  clearly,  so  far  as   circumstances               permit, the exact nature of the relief sought.               The  application  shall be accompanied  by  an               affidavit or affidavits in proof of the  facts               referred   to   in  the   application.    Such               affidavit or affidavits shall be restricted to               matters  which are within the  deponent’s  own               knowledge".               (1) [1957] 32 I.T.R,. 26.               (2) [1960] 40 I.T.R. 200.               (3) [1964] 53 I.T.R. 717. 547 The  application filed in the High Court certainly  complied with the provisions of sub-r. (2) of r. 1 of Ch. XXII of the Rules  of  Court  of the Allahabad High Court.  It  set  out concisely  in numbered paragraphs the facts upon  which  the applicant  relied, the grounds on which the Court was  asked to  issue the direction and the exact nature of  the  relief sought.  But it is said that the affidavit filed in  support of  the  application  did not speak to  matters  which  were within  the  deponent’s  own  knowledge.  Dhruva  Das,   the deponent  of the affidavit, is a relative of the  petitioner

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and  he  also  looked after the case on his  behalf  as  his pairokar  and  was  fully  conversant  with  the  facts.  He solemnly affirmed and swore as follows:                     "I  Dhruva  Das, aforesaid  deponent  do               hereby  solemnly  affirm and  swear  that  the               contents  of paras 1, 2, 3 and 50  partly  are               true  to  my  personal  knowledge,  that   the               contents  of paras. 4, 5, 6, 7, 8, 9, 10.  11,               12. 13, 14, 15, 16, 20, 21, 25, 27, 29 partly,               31, 32, 34, 37, 38.41, 42, 44 are based on  46               and  50 partly and paras 17, 18, 19,  22,  23,               24,  26, 28, 29, partly 30, 33’, 35,  36,  39,               40, 43, 48 partly are based on perusal of  the               record, those of paras 47, 48 partly 49 and 50               partly  are  based on legal  advice,  which  I               believe  to  be  true, that no  part  of  this               affidavit  is false and nothing  material  has               been concealed in it". In  paragraphs which are based  on a perusal of  the  record the deponent referred to the relevant orders of the  Income- tax authorities and also to the relevant agreements and  the copies of the said orders and agreement were also annexed to the  affidavit  as  schedules.  It is  not  clear  from  the schedules  whether certified copies or the original  of  the orders  received  by  the appellant  were  filed.  The  said agreements  and  the  orders  afford  sufficient  basis   to appreciate  the case of the appellant and for  disposing  of the same. "Deponent’s own knowledge" in r. 1(2) of Ch.  XXII of  the Rules is wide enough to comprehend the knowledge  of the  appellant  derived  from  a  perusal  of  the  relevant documents; and the affidavit in express terms disclosed  and specified  the  documents,  the source  of  the  appellant’s knowledge.  He  swore in the affidavit  that  the  documents annexed  to  the  affidavit  were  true  copies  of   public documents. If they are certified copies of public documents, they  prove themselves; if they are original of  the  orders sent to the appellant, the deponent, as his agent, speaks to their receipt. It is, therefore, not correct to say that the facts  stated  in  the  affidavit  are  not  based  on   the deponent’s  knowledge.  The  other  facts  alleged  in   the affidavit  are only introductory in nature and if  they  are excluded the result will not be affected. That apart, if the affidavit  was  defective  in any  manner  the  High  Court, instead  of dismissing the petition in limine,  should  have given  the  appellant  a reasonable opportunity  to  file  a better  affidavit complying with the provisions of r.  1  of Ch. XXII of the Rules. We cannot, therefore, agree with  the High  Court that the petition was liable to be dismissed  in limine in view of the alleged defects in the affidavit. 548     Nor  can  we agree with the High Court  that  the  facts given  in the affidavit are incomplete and confused. On  the other  hand, a careful perusal of the affidavit, along  with the   documents  annexed  thereto,  discloses  clearly   the appellant’s  case:  it  gives the necessary  facts  and  the reliefs  sought for. We do not find any missing link in  the narrative  of  facts or any confusion in the nature  of  the reliefs asked for.     We  cannot  also  agree with the  High  Court  that  the decision of the Bombay High Court in Baijnath Chaturbhuj  v. Commissioner of Income-tax, Bombay City 11(1) was given   on different  facts and that it was impossible to contend  that any  part of the money paid by Messrs. Chaturam &  Sons  was really  compensation  for the managing  agency  rights.  The Bombay  decision  was given in the context  of  the  dispute

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between the Bombay Group and the Income-tax authorities  and was based upon the consideration of the very documents which are the basis of the appellant’s claim. We do not propose to express any opinion on the correctness or otherwise of  that decision. But, the fact that a Division Bench of one of  the High  Courts  in India had taken the view in favour  of  the appellant  indicates  that the question raised  is,  in  our view, an arguable one and it requires serious consideration.     We are satisfied that this is not a case where the  High Court should have dismissed the writ petition in limine.  We find  in the decree issued by the High Court that Sri  Gopal Behari   appeared  on  behalf  of  the   opposite   parties; presumably  he  appeared as the appellant must  have  issued notice in terms of r. 1(4) of Ch. XXII of the Rules. Be that as  it  may,  the High Court did  not   finally  decide  two important  questions  that really arose  ’for  consideration before  it,  namely:  (i)  whether a  revision  lay  to  the Commissioner  under s. 33-A(2) of the Act against the  order of the  Income-tax Officer; and (ii) whether the  Income-tax Officer should have issued a demand under s. 29 of the  Act. If  a  revision lay to the  Commissioner,  the  Commissioner should have considered the second question before dismissing it. Therefore, the question is whether a revision lay to the Commissioner  under s. 33-A(2) of the Act. A  revision  does not lie to the Commissioner against an order where an appeal against   that  order  lies  to  the   Appellate   Assistant Commissioner but has not been made and the time within which such  an  appeal  may be made has not expired  or  where  an appeal against the order has been made, it is pending before him. It follows that if no appeal lies against the order  an officer   to  the  Appellate  Assistant  Commissioner,   the Commissioner can revise that order under s. 33-A of the Act. In  the  present case, pursuant to the  directions  of  the, Tribunal,  Delhi Bench, the Income-tax  Officer   determined the  assessee’s capital gains under s. 12-B of the Act;  but the Income-tax Officer did not make any order under s. 23(3) of the Act, nor (1957) 31/.T.R. 643. 549 did he issue a regular notice of demand as prescribed  under s. 29 of the Act. The result was, no appeal lay against  the computation made by the Income-tax Officer to the  Appellate Assistant  Commissioner.  Indeed,  on  March  8,  1957,  the Appellate  Assistant Commissioner rejected the appeal  filed by the appellant as being not maintainable. As no appeal lay to   the  Appellate  Assistant  Commissioner   against   the calculations   made   by   the   Income-tax   Officer,   the Commissioner had certainly power to revise the said order.     On  March  5, 1956, the appellant flied  an  application requesting  the  Income-tax  Officer to issue  a  notice  of demand as required by s. 29 of the Act. But the said Officer declined  to  issue the notice of demand.  The  question  is whether he was bound to issue a notice of demand under s. 29 of the Act. Section 29 of the Act reads:                     "When  any tax, penalty or  interest  is               due  in  consequence of any order passed under               or  in pursuance of this Act,  the  Income-tax               Officer shall serve upon the assessee or other               person  liable  to pay such  tax,  penalty  or               interest a notice of demand in the  prescribed               form specifying the sum so payable".     Under this section, if a tax is due in consequence of an order  from an assessee, the Income-tax Officer is  under  a duty  to  serve on him a notice of demand. Pursuant  to  the directions  given  by. the Tribunal the  Income-tax  Officer

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made  fresh calculations under the head ’capital gains’  and ascertained  the  amount  due  from  the  assessee.  In  the circumstances,  pursuant to the said calculation, he  should have  passed an order and issued a notice of demand  to  the assessee.  In  not  doing so, it must  be  held   that   the Income-tax  Officer did not discharge his duty which he  was bound  to  do under the Act; with the result he  had  become amenable  to a writ of mandamus directing him to do what  he should have done under the ,Act.     In the result, the order of the High Court is set  aside and we issue a writ of certiorari quashing the order of  the Commissioner  and a writ of mandarnus directing the  Income- tax  Officer  to  pass  an  order  and  issue  a  notice  in accordance  with  law.  The appellant will  have  his  costs throughout. Appeal allowed. 550