AI Drafter 
TaxTMI 
TaxTMI 
2004 (4) TMI 48
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....lowed to the extent indicated above. The notices (annexures P 29 to P 34 of the writ petition) issued to APBCL and the other debtors of SWCL (respondents Nos. 9 to 18) under section 226(3) and the order (annexure P 62 of the writ petition) passed by the Tax Recovery Officer on the objection of SWCL under clause (vi) of section 226(3) are hereby quashed subject to the order passed above. Let a writ of certiorari do issue accordingly. The Tax Recovery Officer shall decide the objection of SWCL under section 226(3) (vi) before proceeding under section 226(3) against SWCL in the light of the observation made in hereinabove. Let a writ of mandamus do issue accordingly. The Tax Recovery Officer is restrained from proceeding with the proceedings under section 226(3) against SWCL till the decree becomes executable and a fresh decision on the objection under clause (vi) of section 226(3) is taken. Let a writ of prohibition do issue to that extent." Therefore, it is clear from the aforesaid impugned order that previously an order was passed under section 226(3), clause (vi), and the said order was, however, set aside by the hon'ble appeal court with the aforesaid direction. It is an ad....
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....n. Moreover, if this order is allowed to operate then the effect thereof shall be felt by the petitioner at its place of business at Calcutta. He has drawn my attention to the averment and statement made in para. 62 of the petition. Mr. Sarkar on the merits submits that the Tax Recovery Officer in gross breach of the direction and mandate given by the appeal court failed and neglected to give any opportunity meaning thereby no notice of hearing was given to the petitioner. No opportunity was given to file the statement on oath, as required under section 226(3)(vi) of the Income-tax Act. Therefore, he contends that existence of alternative remedy in this case will not be applicable as it is a question of violation of the principle of natural justice without affording any chance or opportunity to the petitioner, not only in breach of the provisions of the aforesaid section but also in terms of the judgment and the order of this court. He submits further that the Tax Recovery Officer should not have gone into the merits without giving a notice of hearing. His client wanted hearing and asked for time and without giving such time the order was passed ex parte. The learned Addit....
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....ement relating to the cause of action as well, irrespective of the place of business and office of the effective respondents. This has been made clear under article 226, clause (2) itself. Thus it would be apposite to set out the aforesaid portion of the Constitution: "The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories." The language of clause (2) is very clear with the non obstante clause. In this context now it has to be examined that whether the writ petitioner has been able to make out a prima facie case of the jurisdictional fact. The jurisdictional fact depends upon each and every individual case and having regard to the nature of action being taken. It is settled position of law that the cause of action are the facts or the bundle of facts if traversed the respondents and/or the defendants are to prove t....
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....opportunity. From the records I do not find that the Tax Recovery Officer had given any notice for hearing of this matter. The notice served which has been annexed to the petition shows that he wanted information from the writ petitioner whether the decree had become executable or not. This notice does not make any whisper about his intention to hear the matter in terms of the appeal court's judgment. The learned Additional Solicitor General contends that pointing out the recording of the Tax Recovery Officer that there was no statement on oath taking objection as required under section 226(3), clause (vi), so consideration of objection was not at all warranted. I am of the prima facie view that such recording of the Tax Recovery Officer is patently wrong on the face of the appeal court's findings that the statement on oath had already been filed and on the basis of that statement on oath the previous order was passed which was set aside.' Therefore, the Tax Recovery Officer at least should have considered the statement on oath already on record and that was not done and he has passed the impugned order without giving any hearing at all. In my prima facie view, the Tax Recove....