T.D. Sugla J.
1. By this petition under article 226 of the Constitution of India, the petitioner challenged the non-granting of the 'No Objection Certificate' by the departmental authorities which was necessary for obtaining the Reserve Bank permission to remit/pay DM 80,000 to four foreign technicians whose services the petitioner was to avail of for setting up and ensuring proper functioning of its Goniophotometer with Mirror arrangement plant imported from West Germany for its research and development department. The petition was admitted on April 21, 1987, when the interim order as under was passed :
'Leave to amend as per draft and figures in prayers. Rule returnable on June 8, 1987. Interim order in terms of prayer (c). Certificate to be issued forthwith on the petitioner's undertaking to this court to furnish a bank guarantee of a nationalised bank for Rs. 1.8 lakhs within two weeks. Bank guarantee to be furnished to the satisfaction of the Protho. The petitioner states that he is willing to be treated as an agent under section 163(1)(c) of the Income-tax Act regarding the payments in question. Respondents apply for stay of interim order. Application rejected.'
2. It is common ground that the petitioner furnished the required bank guarantee. The departmental authorities issued the no objection certificate. The foreign technicians came to India, accomplished their work, went back to West Germany and were paid DM 80,000 without deducting any tax therefrom.
3. It is also common ground that, after the aforesaid interim order was passed by this court, on the same day orders under section 197(1) of the Income-tax Act, 1961, dated April 16, 1987, were received by the petitioner requiring it to deduct tax under section 192 out of payments/remittance to be made to the four foreign technicians. However, no action thereupon was taken thereafter perhaps in view of the interim order. During the course of hearing, learned counsel for the petitioner placed before the court an order dated February 9, 1990, issued by the Income-tax Officer, Ward 23(9), Bombay, treating the petitioner as an agent in relation to the four foreign technicians under section 163(1)(c) of the Income-tax Act, 1961.
4. Shri Dalvi, learned counsel for the petitioner, argued at length that the payments made to the four foreign technicians were not income in their hands chargeable under the head 'Salary' and, consequently, the petitioner was not obliged to deduct tax under section 192. He also argued that the remuneration paid to the foreign technicians was exempt under section 10(6)(vi) of the Act. It, however, appears to me that all this has now become academic and need not be considered. The reason is that the orders under section 197(1) dated April 16, 1987, have not been acted upon and perhaps cannot be acted upon now as the payments have already been made without deduction of tax in terms of the interim order passed by this court. The fact that the petitioner has been treated as an agent for them also under section 163(1)(c) prima facie indicates that the Department is seeking to recover tax payable, if any, by the foreign technicians through the petitioner as an agent under section 163(1)(c). In view of the statement on behalf of the petitioner recorded while granting the interim order, the petitioner cannot certainly make a grievance against being treated as agent. This court cannot decide the question on the assumption that the Department may take steps in futherance of orders under section 197(1) dated April 16, 1987, and treat the petitioner as an assessee in default under section 201 of the Income-tax Act. To say the least, this question, at this stage, is hypothetical. Assuming that the Department does so, the petitioner will have enough remedies under the Income-tax Act by way of appeals in which each and every aspect of the matter can be gone into.
5. It may not be out of place to mention here that, under article 226 of the Constitution, the High Court has certain self-imposed limitations such as (i) the court would not act as a court of appeal or revision to correct mere errors of law or facts; (ii) writ jurisdiction is not intended as an alternative remedy for relief which can be obtained by suit or other mode prescribed by the statute; and (iii) the court will not generally entertain determination of questions which demand elaborate examination of evidence and will not decide abstract or academic or hypothetical questions. Moreover, particularly as regards taxation matters, the scope and powers of the High Court under article 226 are held to be much more limited by the Supreme Court in a series of cases. To quote a few, it was held in the case of Shivram Poddar v. ITO : [1964]51ITR823(SC) :
'It is, however, necessary once more to observe, as we did in C. A. Abraham's case : [1961]41ITR425(SC) , that the Income-tax Act provides a complete machinery for assessment of tax and for relief in respect of improper or erroneous orders made by the Revenue authorities. It is for the Revenue authorities to ascertain the facts applicable to a particular situation, and to grant appropriate relief in the matter of assessment of tax. Resort to the High Court in exercise of its extraordinary jurisdiction conferred or recognised by the Constitution in matters relating to assessment, levy and collection of income-tax may be permitted only when questions of infringement of fundamental rights arise, or when on undisputed facts the taxation authorities are shown to have assumed jurisdiction which they do not possess. In attempting to bypass the provisions of the Income-tax Act by inviting the High Court to decide questions which are primarily within the jurisdiction of the Revenue authorities, the party approaching the court has often to ask the court to make assumptions of facts which remain to be investigated by the Revenue authorities.'
6. Referring to the above observations, the Supreme Court held in the case of Gita Devi Aggarwal v. CIT : [1970]76ITR496(SC) :
'Where an assessee gives no explanation in his writ petition against an order of the Commissioner under section 33B of the Indian Income-tax Act. 1922, for not preferring an appeal under the Act against the Commissioner's order and justifying the recourse to the special jurisdiction of the High Court under article 226 of the Constitution, the High Court would be justified in dismissing the writ petition in limine.'
7. In the case of CIT v. Ramendra Nath Ghosh : [1971]82ITR888(SC) , the Supreme Court, while dismissing the appeals, made the following observations (at page 891) :
'We cannot leave this case without expressing our disapproval as regards the procedure adopted by the High Court. the question whether the assessees had been served in accordance with the law or not is essentially a question of fact. The Income-tax Act provides for an appeal against the order under the section 33B. Normally, the assessee should have gone up in appeal against the order under section 33B. They should not have been allowed to invoke the extraordinary jurisdiction of the High Court. This court has emphasised that aspect in more than one decisions The learned judges while noticing those decisions have tried to bypass those decisions. But, it is needless to go into that question now. It cannot be said that the High Court had no jurisdiction to entertain the writ petitions though it should not have exercised it discretion in favour of the assessee in view of the adequate alternative remedy they had.'
8. There is then a decision of this court in this case of Mancharrao Narsingrao Heble v. Union of India : [1985]151ITR304(Bom) in which the learned judge, after referring to similar observations of the Supreme Court in the case of Titaghur Paper Mills Co. Ltd., v. State of Orissa [1983] 143 ITR 663, dismissed the petition observing.(headnote) :
'It is undoubtedly true that the High Court has jurisdiction under article 226 of the Constitution to grant relief even when there is an alternative remedy, but the High Court is always slow in exercising that jurisdiction and it is only in exceptional cases that the writ jurisdiction is exercised in spite of there being an alternative remedy.
The Income-tax Act provides a complete machinery to challenge an order of asssessment and the same can be challenged only by the mode prescribed by the Act and not by a petition under article 226 of the Constitution, because of the Act provides for adequate safeguards against an arbitrary or unjust assessment.'
9. Accordingly, the petition is dismissed as being infructuous. Rule stands discharged. No order as to costs.