( 1 ) BECAUSE common questions of law and facts arisa in these six petitions the are disposed of by this common order. ( 2 ) THE petitioner in WPs. 3447, 3448 and 3578 of 1973 is M/s Stump schuela and Somappa (P) Ltd In WPs. 3447 and 3448 of 1973 the petitioner has questioned the notices issued by the Income Tax Officer under s. 8 of the Companies (Profits) Surtax Act, 1964 (hereinafter referred to as the Act), in respect of assessment years 1969-70 and 1970-71. In WP. 3578 of 1973 the petitioner has questioned th? validity of the notice issued under S. 16 of the Act by the) Commr of Income Tax in respect of assessment year 1971-72. WP. 1131 of 1974 is filed by Senapathy Whitely (P) Ltd, questioning the validity of the notice issued by the Commr of I. T. under s. 16 of the Act in respect of assessment year 1969-70. WPs2551 and 2552 of 1974 are filed by International Instruments P Ltd questioning the validity of the notices issued by the ITO under S. 8 of the Act in respect of the assessment years 1970-71 and 1971-72. ( 3 ) THE petitioners are assessees under the Act. The assessments during the relevant years were completed under the Act by the Income tax Authorities and the amounts demanded from them were paid by the petitioners. It would appear that in the year 1973 the ITO was of the view that there has been under-asessment under the Act in the case of the petitioners in WPs. 3447 and 3448 of 1973 and 2551 and 2552 of 1974 and issued notices under S. 8 of the Act to the petitioners to show cause as to why action should not be taken to, reassess the petitioners. Similarly, the commr of I. T. was of the view that the order passed by the ITO against the petitioners in WPs3578 of 1973 and 1173 of 1974 was prejudicial to the interests of the revenue and issued notices under S. 16 of the Act asking them to show cause as to why action should not be taken thereunder. Both the ITO and the, Commissioner were of the; opinion that there has been excessive allowance by way of statutory deduction in thei case of the petitioners and therefore there was under-assessment. Both the ITO and the, Commissioner were of the; opinion that there has been excessive allowance by way of statutory deduction in thei case of the petitioners and therefore there was under-assessment. The ground on which the authorities concerned came; to that conclusion was that the amounts which had been allowed to be deducted under Ss. 80 (I) and 80 (J) of the income Tax Act had not been taken intq consideration at the time the assessment orders were passed under the Act while determining the extent of statutory deduction the petitioners were entitled, and that Rule, 4 of the Second Schedule of the Act had not been applied in the case of the petitioners. Aggrieved by the notices issued either under S. 8 or S. 16 of the Act, the petitioners have filed these writ petitions. ( 4 ) AT this stage it is necessary to dispose of a preliminary objection raised by Sri S. R. Rajasekhara Murthy, learned Counsel for the Revenue regarding the maintainability of these petitions. He contended that it was open to the petitioners to file their objections to the notices issued by the concerned authorities and then to file an appeal against the orders to be passed by the authorities if the petitioners felt aggrieved by the orders. He also contended that the matter could be brought up by way of reference to this Court u/s. 256 of the I. T. Act. In view of the, existence of the said alternative remedy this Court should not exercise its jurisdiction under arc. 226 of the Constn. On behalf of the petitioners it was urged by Sri G. Sarangan that in similar cases the Commr had already taken a view which was adverse to the petitioners and that the Tribunal had reversed the decision of the Commr in an appeal filed against that order. In these circumstances it was argued that the existence of the alternative remedy was not an efficacious one. It is well settled that the existence of an alternative remedy does not in any way affect the jurisdiction of this Court under Art. 226 of the Constn. It is for the Court to consider in each case having regard to the circumstances whether it should exercises its jurisdiction under Art. 226 of the Constn or not. It is well settled that the existence of an alternative remedy does not in any way affect the jurisdiction of this Court under Art. 226 of the Constn. It is for the Court to consider in each case having regard to the circumstances whether it should exercises its jurisdiction under Art. 226 of the Constn or not. Having regard to the fact that the Commr has already taken a decision in another case contrary to the view put forward by the petitioners in these cases and that the claim of the Dept that there has been an underassessment is patently contrary to the provisions of law, I am of the view that the preliminary objection regarding the maintainability of these writ petitions has to be over-ruled. It is accordingly over-ruled. ( 5 ) IN order to deal with the contentions of the parties it is necessary to give a brief summary of the relevant provisions of the Act. The Act was passed in the year 1964 in order to impose a special tax on companies (other than those which have no share capital) on their excess profits, namely, the amount by which the total income of a company as reduced by certain types of income and certain sums and the income-tax and supertax payable by it exceeds 10 per cent of its capital, reserves and certain borrowed moneys or a sum of Rs. 2 lakhs whichever is higher. Sec. 4 of the Act which is the charging section prqvides that there shall be charged on every company for every assessment year commencing on and from the first day of April, 1964, a tax known as surtax in respect of so much of its chargeable profits of the previous year or previous years, as the case may be, as to exceed the statutory deduction, at the rate or rates specified in the Third Schedule. The expression 'chargeable profits' is defined in S. 2 (5) as the total income of an asesssee computed under the income Tax Act, 1961 for any previous year or years, as the case may be, and adjusted in accordance with the provisions of the First Schedule of the Act. The expression 'chargeable profits' is defined in S. 2 (5) as the total income of an asesssee computed under the income Tax Act, 1961 for any previous year or years, as the case may be, and adjusted in accordance with the provisions of the First Schedule of the Act. The expresssion 'statutory deduction' is defined in S. 2 (8) of the act as an amount equal to ten per cent of the capital of the company as computed in accordance with the provisions of the II Schedule, or an amount of two hundred thousand rupees, whichever is greater. In order to determine the permissible statutory deduction it would be necessary to make a computation of the capital of the company. Rules, 1, 2 and 3 of the II Schedule lays down the manner in which the capital of the company should be determined. Rula 4 of the II Schedule which is relevant for the purpose of these cases reads as follows :" Rule 4: Where a part of the income profits and gains of a company is not includible in its total income as computed under tha income Tax Act, its capital shall be the sum ascertainad in accordance with Rules 1, 2 and 3, diminished by an amount which bears to that sum the same proportion as the amount of the aforesaid income, profits and gains bears to the total amount of its income, profits and gains. "what Rule 4 states is that if any part of the income, profits and gains of a company cannot be included in the total income as computed under the i. T. Act, then the capital of the company ascertained in accordance with rules 1, 2 and 3 should be diminished proportionately by an amount which bears to that sum the same proportion as the income which is not includible in its total income under the I. T. Act bears to the total amount of incomes. When the orders of assessment under the Act were passed in all these cases the assessing officers were of the opinion that the deduction under ss 80 (I) and 80 (J) of the I. T. Act could not be considered as referring to any income not includible in the total income of the companies and therefore rule 4 was not applicable to the cases. Later on they appear to have changed their view on the above question. Later on they appear to have changed their view on the above question. Before issuing notices under S. 8 of the Act the Income Tax Authorities were of the opinion that there had been in all these cases an excessive allowance by way of statutory deduction because the capital ascertained in accordance with the Rules 1, 2 and 3 had not been diminished by a proportionate amount having regard the deductions ajlqwed under Ss. 80 (I) and 80 (J) of the Act. Hence, ITO issued notices under S. 8 in some of the above cases and the Commr issued notices under S. 16 of the other cases. ( 6 ) THE correctness or otherwise of the view taken by the authorities depends upon the construction to be placed on Rule 4 of the II Schedule of the Act and the meaning to be given to the expression "income, profits, and gains of a company. . . . . not includible in its total income as computed under the Income Tax Act" appearing in Rule 4. In order to understand the meaning of the above expression it would be necessary to refer to some, of the provisions of the I. T. Act as it stood when the; Act was passed in the year 1964. Chap. III of the I. T. Act refers to the incomes which dq not form a part of total income. Chap. V deals with cases where income of other persons has to be included in assessee's total income and Chap. VII refers to incomes which form part of total income on which no income tax is payable. Under some of the provisions of Chap IV providing for the computation of the total income thei Parliament directed that certain expenses, rebates, allowances etc, should be deducted from the gross income before arriving at the gross tqtal income. After the gross total income, is arrived at by applying the provisions of Chaps IV and V it is the duty of the assessing authority to determine that part of the income which was included in the total income on which no income tax was payable, under Chapter vii. Chap. VI-A of the IT. Act was introduced for the first time in the year 1965 by the Finance Act 10 of 1965. Chap VI-A was later on subtituted by the new Chap. Chap. VI-A of the IT. Act was introduced for the first time in the year 1965 by the Finance Act 10 of 1965. Chap VI-A was later on subtituted by the new Chap. VI-A by the Finance (No 2) Ad of 1967 containing ss. 80 (A) to 80 (T ). S. 80 (U) was adckd by Act 19 of 1968. S. 80 (I) and 80 (J) were enacted by Finance (No. 2) Act ot 1967 S 80 (A) (1) provides that in computing the total income of an assessee there shall be allowed from the gross total income in accordance with and subject to the provisions of that Chapter the deductions specified in Ss 80 (C) to 80 (U) That means, if the assesses claims any deduction under any of the provisions contained in Ss. 80 (C) to 80 (U) and establishes the circumstances warranting such a deduction, it would be the duty of the assessing officer to allow the said deduction. If no such deduction is claimed, the assessee will have to pay the tax on the gross total income ascertained in accordance, with the other relevant provisions of the Act. It follows that any amount in respect of which the deduction is claimed under any of the provisions in ss. 80 (C) to 80 (U) is already included in the gross total income of the assessee, and therefore? it cannot be stated that the amounts which are allowed to be deducted under the provisions of Sections 80 (C) to 80 (U) are not includible in the income of the assesses. The expression 'not includible' means not capable of being included. It cannot refer to an amount which already forms part of the gross total income and which would be later on deducted for purposes of determining the tax liability under Chap. VI-A. In this context it would be relevant to refer to Ss. 10 and 11 appearing in Chap. III of the I. T. Act s. 10 which was in existence when the Act was passed by the Parliament provides that in computing the total income of the previous year of any person any income falling within the Clauses mentioned tharein shall not bo included. 10 and 11 appearing in Chap. III of the I. T. Act s. 10 which was in existence when the Act was passed by the Parliament provides that in computing the total income of the previous year of any person any income falling within the Clauses mentioned tharein shall not bo included. Similarly S. 11 provides that the incomes referred to therein shall not be included in the total income of the previous year of the person in receipt of the income for purposes of the levy of income tax. It is significant that the expression 'shall not be included' which is found in Ss. 10 and 11 which are in Chap. III, the title of which is 'incomes which do not form part of total income', is not used in any of the provisions contained in ss. 80 (C) to 80 (U ). Similarly the said expression is not used in Chap. IV of the I. T. Act providing for the method of computation of the income under which the assessee is allowed deductions by way of expenses, rebates, allowances etc. Both in Chaps. IV and VI-A the Parliament has consistently used the words 'deduction shall be allowed' and not the expression 'shall not be included'. I am of the view that when the Act was passed the parliament was of the opinion that the expression 'incomes, profits and gains of a company. . . . not includible in its total income as computed! under the I. T. Act' referred to only to those items appearing in Ss. 10 and 11 of the I. T. Act. It is significant that even in Form No. 1 prescribed by Rule, 5 of the Rules framed under the Act (which is the form to be used by the assessee to file his return under the Act) it was stated under Note 8 as follows :"instances of income, profits and gains not includible in. the total income as computed under the Income Tax Act, 1961 are agricultural income in India and in the case of a non-resident company, its incomer accruing or arising outside India. "agricultural income is an item referred to, in S. 10 (1)of the I. T. Act. That the said expression cannot refer to any other deduction which can be claimed under Chap. "agricultural income is an item referred to, in S. 10 (1)of the I. T. Act. That the said expression cannot refer to any other deduction which can be claimed under Chap. IV-A of the I. T. Act, is also clear from the fact that some of the provisions which were originally found in Chap. VII have been shifted from Chap. VII to Chap. Vi-A not on the ground that they were not 'includible in the income', but because the Parliament thought of a different method of computation. To illustrate the above statement reference may be made to S. 84 of the I. T. Act as it stood when the Act was passed. It provided for a rebate in the income tax payable by the assessee in respect of a portion of the income of a newly established industrial undertaking. By the finance (No 2) Act of 1967 S. 84 was repealed and in its place S. 80 (J) was enacted. Having regard to the history of the legislation I am of the view that in substance there is no difference between character of the deductions which are allowed under Chap. VI-A and the character of rebates that were allowed under the corresponding provisions in Chap. VII as it stood when the Act was passed by the Parliament. It is, therefore,, clear that the expression "income, profits and gains of a company not includible in its total income as computed under the I. T. Act" refers to those sums which are not includible in the total income by the provisions of Chap. III of the I. T. Act and does not refer to any of the deductions claimable under chap. VI-A cf the I. T. Act. If the contention of the revenue; is accepted in the case of the provisions appearing in Chap. VI-A of I. T. Act, then necessarily even the deductions which are permitted under Chap. IV have to be held as coming within the meaning of the expression 'income, profits and gains not includible in its total income as computed under the I. T. Act'. I do not think that the Parliament ever intended that such a result should follow. I am, therefore, of the view that the claim of the respondents in these eases that there has been an under-assessment under the Act by reason of not treating the deductoins allowed under Ss. I do not think that the Parliament ever intended that such a result should follow. I am, therefore, of the view that the claim of the respondents in these eases that there has been an under-assessment under the Act by reason of not treating the deductoins allowed under Ss. 80 (I) and 80 (J) of the I. T. Act as amounts not includible in the total income of the petitioners cannot be sustained. The nonces issued to the petitioners either under S. 8 or under s. 16 of the Act are therefore patently contrary to law. ( 7 ) IN the result these petitions succeed. The impugned notices are, quashed. There will be no order as to costs. --- *** --- .