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But in decided cases, particularly in India, there is some mixing up of two different concepts, viz., administrative tribunal and administrative act. Ratio |
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. Ratio |
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. Ratio |
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. Ratio |
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, i... |
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. Ratio |
Thus, if in order to arrive at the decision, the (1) ; (2) ; (3) (4) (5) ; (6) , 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 . . . . . Ratio |
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 . . . . . Ratio |
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". Ratio |
The relevant principles have been succinctly stated in Halsbury 's Laws of England, 3rd Edn., Vol. 11, at pp. Ratio |
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 of the formalities of, and are not in accordance with the practice of, a court of law. Ratio |
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. Ratio |
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... |
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". Ratio |
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. Ratio |
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 vs Andhra Pradesh State Road Transport Corporation(1), the order of the Examination (1) [1959] Supp. 1 S.C.R. 3... |
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. Ratio |
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. Ratio |
If the statute expressly imposes a duty on the administrative body to act judicially, it is a clear case of a judicial act. Ratio |
But the duty to act judicially may not be expressly conferred but may be inferred from the provisions of the statute. Ratio |
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. Ratio |
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. Ratio |
With this background let us look at the relevant provisions of the Income tax Act. Ratio |
Section 33A(2). STA |
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 prevente... |
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] Su... |
Provided further that an order by the Commissioner declining to interfere shall be deemed not to be an order prejudicial to the assessee. Ratio |
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. Ratio |
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. Ratio |
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. Ratio |
After such enquiry he can make an order not to the prejudice of the assessee but to his benefit. Ratio |
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. Ratio |
The scope of the revision is, therefore, similar to that prescribed under different statutes. Ratio |
Prima facie the jurisdiction conferred under section 33A(2) of the Act is a judicial one. Ratio |
The order that is brought before the Commissioner affects the right of the assessee. Ratio |
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. Ratio |
The nature of the jurisdiction and the rights decided carry with them necessarily the duty to act judicially in disposing of the revision. Ratio |
The fact that the Commissioner cannot make an order to the prejudice of an assessee does not possibly change the character of the proceeding. Ratio |
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. Ratio |
But it is said that the Commissioner exercising jurisdiction under section 33A of the Act is only functioning as an administrative authority and all his orders made thereunder partake that character. Ratio |
Reliance is placed on the decision of the Judicial Committee in Commissioner of Income tax, Punjab, N.W.F. & Delhi Provinces, Lahore vs Tribune Trust, Lahore(1). Ratio |
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. Ratio |
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 section 33 of the Act unless that order was prejudicial to the assessee in the sense that he was in a worse position ... |
But the Board incidentally made the following observations: "On the contrary, section 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 s... |
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. Ratio |
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". Ratio |
Continuing the same idea that Board observed: "The Commissioner may act under section 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 mat... |
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". Ratio |
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. Ratio |
But the question whether the order of the Commissioner under section 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 orde... |
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. Ratio |
Section 33 A took the place of section 33 with certain modifications. Ratio |
Sub section (1) of section 33A provided for the Commissioner acting suo motu; and sub section(2)thereof, on the application of the assessee. Ratio |
Under this section the Commissioner can exercise the revisional jurisdiction subject to the conditions mentioned therein. Ratio |
While section 33 only provided for the suo motu exercise of the jurisdiction, section 33A enables an assessee to apply to the Commissioner to revise the order of his subordinate officer. Ratio |
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. Ratio |
would not lie to quash the order of the Commissioner under section 33A of the Act: see Sitalpore Colliery Concern Ltd. vs Union of India(1); Additional Income tax Officer, Cuddapah vs Cuddapah Star Transport Co. Ltd.(2); and Suganchand Saraogi vs Commissioner of Income tax, Calcutta(3). Ratio |
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. Ratio |
In our view, for the reasons mentioned by us earlier, the said judgments were decided wrongly. Ratio |
That apart, on the assumption that the order of the Commissioner under section 33 A of the Act was an administrative one, the respondent would not be in a better position. Ratio |
What the appellant complains is that the Income tax Officer in terms of section 29 of the Act is under an obligation to issue a demand notice. Ratio |
If the said contention was correct, he did not discharge the duty imposed on him by the statute. Ratio |
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. Ratio |
In that event the assessee would certainly be entitled to approach the High Court under article 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. Ratio |
We, therefore, reject the preliminary objection of the respondents. Ratio |
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. Ratio |
In exercise of the powers conferred by article 225 of the Constitution and of other powers enabling it in that behalf the High Court of Allahabad framed the Rules of Court. STA |
Chapter XXII thereof deals with the procedure to be followed in respect of a proceeding under article 226 of the Constitution other than a writ in the nature of habeas corpus. STA |
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 circums... |
The application shall be accompanied by an affidavit or affidavits in proof of the facts referred to in the application. STA |
Such affidavit or affidavits shall be restricted to matters which are within the deponent 's own knowledge". STA |
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. Ratio |
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. Ratio |
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. Ratio |
Dhruva Das, the deponent of the affidavit, is a relative of the petitioner and he also looked after the case on his behalf as his pairokar and was fully conversant with the facts. Ratio |
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, 4... |
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. Ratio |
It is not clear from the schedules whether certified copies or the original of the orders received by the appellant were filed. Ratio |
The said agreements and the orders afford sufficient basis to appreciate the case of the appellant and for disposing of the same. Ratio |
"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. Ratio |
He swore in the affidavit that the documents annexed to the affidavit were true copies of public documents. Ratio |
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. FAC |
It is, therefore, not correct to say that the facts stated in the affidavit are not based on the deponent 's knowledge. Ratio |
The other facts alleged in the affidavit are only introductory in nature and if they are excluded the result will not be affected. Ratio |
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. Ratio |
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. Ratio |
548 Nor can we agree with the High Court that the facts given in the affidavit are incomplete and confused. Ratio |
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. Ratio |
We do not find any missing link in the narrative of facts or any confusion in the nature of the reliefs asked for. Ratio |
We cannot also agree with the High Court that the decision of the Bombay High Court in Baijnath Chaturbhuj vs 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 managi... |
The Bombay decision was given in the context of the dispute 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. Ratio |
We do not propose to express any opinion on the correctness or otherwise of that decision. Ratio |
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. Ratio |
We are satisfied that this is not a case where the High Court should have dismissed the writ petition in limine. Ratio |
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. Ratio |
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 section 33 A(2) of the Act against the order of the Income tax Officer; and (ii) whether the Income tax Officer should have issued... |
If a revision lay to the Commissioner, the Commissioner should have considered the second question before dismissing it. Ratio |
Therefore, the question is whether a revision lay to the Commissioner under section 33 A(2) of the Act. Ratio |
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. Ratio |
It follows that if no appeal lies against the order an officer to the Appellate Assistant Commissioner, the Commissioner can revise that order under section 33 A of the Act. Ratio |
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