1958 (11) TMI 1 - SC - Income Tax

Whether the assessee could waive the breach of the fundamental right in question? Whether in the facts and circumstances of this case he had actually done so? Held that - Where a right or privilege guaranteed by the Constitution rests in the individual and is primarily intended for his benefit and does not infringe on the right of others, it can be waived provided such waiver is not forbidden by law and does not contravene public policy or public morals. On a consideration of the nature of the fundamental right flowing from article 14, we have no doubt in our mind that it is not for a citizen or any other person who benefits by reason of its provisions to waive any breach of the obligation on the part of the State. In this case it is held that there is no foundation on facts to sustain the plea of waiver. Therefore, allow the appeal with costs. The order of the Commissioner of Income-tax, Delhi, dated January 29, 1958, must be set aside and all proceedings now pending for implementation of the order of the Union Government dated July 5, 1954, must be quashed.

Issues Involved:
1. Validity of the settlement under Section 8A of the Taxation on Income (Investigation Commission) Act, 1947.
2. Discriminatory nature of the procedures under the Investigation Act.
3. Application of the doctrine of waiver to fundamental rights under the Indian Constitution.

Detailed Analysis:

1. Validity of the Settlement under Section 8A:
The appeal questions the validity of a settlement made under Section 8A of the Taxation on Income (Investigation Commission) Act, 1947. The Act, which came into force on May 1, 1947, authorized the Central Government to refer cases to an Income-tax Investigation Commission. The Commission was tasked with investigating substantial evasion of income tax. Section 8A, inserted by Act 67 of 1949, allowed for the settlement of cases under investigation. The appellant, referred to as "the assessee," entered into a settlement with the Commission, which was subsequently approved by the Central Government. However, the Supreme Court had previously held in M. Ct. Muthiah v. Commissioner of Income-tax that Section 5(1) of the Act was unconstitutional as it violated Article 14 of the Constitution, rendering the settlement invalid.

2. Discriminatory Nature of Procedures under the Investigation Act:
The procedures under the Investigation Act were found to be more drastic and harsh compared to those under the Indian Income-tax Act, 1922. The Supreme Court in Suraj Mall Mohta and Co. v. A. V. Viswanatha Sastri and Sree Meenakshi Mills Ltd. v. Sri A. V. Viswanatha Sastri held that the procedures prescribed by the Investigation Act were discriminatory and violated Article 14 of the Constitution. The Court noted that different procedures for similar cases resulted in unequal treatment. The Investigation Act's procedure was more prejudicial to the assessee compared to the procedure under the Indian Income-tax Act, 1922. The Court emphasized that the discriminatory provisions were an integral part of the Act and could not be separated from the rest.

3. Application of the Doctrine of Waiver to Fundamental Rights:
The Court examined whether the assessee could waive the breach of his fundamental right under Article 14 of the Constitution. The doctrine of waiver, as applied in American jurisprudence, allows individuals to waive certain constitutional rights. However, the Supreme Court of India, in Behram Khurshed Pesikaka v. State of Bombay, expressed skepticism about applying this doctrine to fundamental rights under the Indian Constitution. The Court held that fundamental rights are a matter of public policy and cannot be waived. The majority opinion in the present case reaffirmed this view, stating that the fundamental rights enshrined in Part III of the Constitution are intended for the benefit of all citizens and cannot be waived by any individual.

Conclusion:
The Supreme Court allowed the appeal, setting aside the order of the Income-tax Commissioner dated January 29, 1958, and quashing all proceedings pending for the implementation of the Union Government's order dated July 5, 1954. The Court held that the settlement under Section 8A of the Investigation Act was invalid due to the unconstitutionality of Section 5(1) of the Act. Furthermore, the Court concluded that the fundamental rights guaranteed by the Constitution could not be waived, emphasizing the public policy nature of these rights. The assessee was awarded the costs of the appeal.

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