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TMI Blog1952 (9) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment year, 1951-1952. 3. The applicants further pray that a writ of mandamus be issued directing opposite party No. 1 namely the Board of Revenue, Uttar Pradesh, to decide the respective applications of the applicants in accordance with law. 4. As I stated earlier, the prayers are in the alternative. There is farther prayer, in the alter-native, praying for a writ of certiorari by calling for the record of the case and quashing the order complained of, an order which was passed by opposite party No. 1, namely the Board of Revenue. There is a sort of a general prayer, and that too in the alternative, namely, that this Court may issue such other writ or direction as it may deem fit and necessary. 5. The facts which have given rise to these two applications very briefly put are these. Both the applicants were liable to pay agricultural Income Tax under the provisions of the U. P. Agricultural Income Tax Act (Act 3 of 1949). The periods for which the applicants were assessed to tax earlier were 1948-49 and 1949-50. 6. By Section 5 of the Act provision has been made for the determination of agricultural income. Section 6 of the Act makes provision for the computation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it gave the assessee an advantage. The writer of the note drew the attention of the Deputy Secretary to the fact that the change of option is not generally allowed in those cases in which the interest of Government is affected. The note further said that if the change in the particular cases was allowed Government would be at a great disadvantage. 7. The aforementioned note also pointed out that the assessees had made a similar request last year and that their applications had been rejected on the ground mentioned earlier, namely on the ground that the change over was going to adversely affect the amount of the tax that was likely to come to the State Treasury. 8. The synopsis which I have given of the note (to use a common expression) was scrutinized by the Deputy Secretary and he himself made a further note in the following words : S. M. The two cases noted upon in the office note do not deserve any consideration for change of option from 6 (2) (b) to 6 (2) (a) for the reasons given in the above note from page 9 ante. The applications merit rejection. Sd/- Jagram Singh. 9. The matter, after these two nothings , was put before Mr. B. V. Bhadkamkar who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to above, but I do not agree with Mr. Pathak's contention. In my judgment, the language of the first proviso to Section 6 (1) is so clear that it is unnecessary, even if it were permissible, to take the assistance of other statutes to interpret this proviso. In my judgment, this proviso means that once and only once during the course of an assessee's, if I may use the word assessable life , can he, unfettered, exercise the option given to him under Section 6 (1) of the Act and that if once, and the words of the Statute so put it, he has exercised his option, he cannot, without the permission of the Board, take the other alternative. 15. Learned counsel for the applicants argued that in giving the meaning which I have given to the section, I would be importing some kind of a rule of res judicata into my decision. I, however, think that this is not the correct way of looking at the matter for there is no question of any rule of res judicata coming into the picture but the question is of the interpretation of the words of the proviso, set out earlier in this judgment. 16. The next point which Mr. Patkak argued was that the discretion--and I must here state that he conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the matter of the option by the applicants had been considered by the Senior Member, Board of Revenue, once before also in respect of the assessment for the year 1950-51. There is, therefore, before me material for hold-ling that the Senior Member, Board of Revenue, gave due consideration to the reasons on which the applicants wanted a change in their method of computation. In my view, therefore, apart from the presumption which a Court can legitimately make that a responsible officer on whom a statute has conferred the privilege of exercising a discretion, has not acted capriciously, there is in this case good evidence for holding that he has not so acted. 20. Mr. Pathak next contended that the Senior Member, Board of Revenue took into account the question of the loss of revenue, a consideration which was foreign to the scheme of the Act, and by considering such a matter his decision was vitiated. In my judgment, the question of loss of revenue was not at all foreign to the scheme of the Act. The entire object of the U. P. Agricultural Income Tax Act was to provide for the imposition of a tax, a source of revenue, on agricultural income. The preamble to the Act says wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o execute a conveyance, and so the Grown will lose the stamp duty, and it is rather suggested that this would be cheating the Crown and committing a fraud. The Crown, however, must make out its right to the duty and if there be a moans of evading the stamp duty, so much the better for those who can evade it. It is not fraud upon the Crown, it is a thing which they are perfectly entitled to do. On the observations quoted above of Lord Esher, it was argued that the evasion of revenue was a matter which should not have been considered at all. As I read the observations of Lord Esher I do not think the Noble Lord ever meant to lay down, or actually laid down, anything like what was being contended. What was laid down in that case was that, if a subject can evade payment legally, then it cannot be termed as fraudulent conduct, nor can it be said that he is cheating the State of its just revenues. The burden is on the State to prove that it is entitled to a certain revenue before it can recover it and, if the subject can, without infringing the law, escape liability, then the subject certainly can do so and it would be no ground for Courts to order recovery of any revenue on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the infringement of Article 19(f) arises in the case. 25. In regard to the infringement of Article 14 of the Constitution, namely, in regard to the proviso to Section 6, Agricultural Income Tax Act giving the power to the Board of Revenue to discriminate, reliance was placed on two decisions of this Court, reported in Karamchand v. Dr. Vijay Anand 1952 A . l. J. 274 and Mannu Lal v. Chakradhar Hans 1952 A . 1. j. 278 respectively. Both these cases were under the U. P. (Temporary) Control of Kent and Eviction Act and in the first of those cases the question was whether the unregulated discretion given to District Magistrates to grant or not to grant permission under Section 3 of the Act infringed the provisions of Article 14 of the Constitution. A Bench of this Court of which one of us was a member held : If the discretion to grant licenses can be without any regulating principles embodied in the statute, there is no reason why the discretion to grant permission to a landlord to sue his tenant for ejectment should be hedged in by statutory rigid rules. We hold that it does not infringe Article 14 of the Constitution. 26. As I stated at the commencement of this judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discretion. The writ of mandamus can never be used as a substitute for appeal or what has been called in America a writ of error . I have held in the earlier portion of this judgment that the Senior Member, Board of Revenue, had exercised his discretion honestly and on a full consideration of the materials before him. In my judgment, therefore, there is no scope for this Court to interfere by means of any of the writs asked for by the applicants. 28. In the result I would dismiss these applications with costs. Bind Bansi Prasad, J. 29-30. I agree with the conclusion arrived at by my learned brother and desire to add the following : The facts have been set out in the judgment of my learned brother and need not be reiterated. The first contention on behalf of the petitioners is that on a true interpretation of Section 6 (1), U. P. Agricultural Income Tax Act 1948, an assessee is at full liberty to choose any method of computation of his agricultural income in any year, but if in the course of a particular year he has chosen one method, he cannot vary it and choose another in that particular year. To interpret Section 6 (1) in this manner would be doing violence to its la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in its executive capacity. The usual procedure of judicial authorities is not prescribed for the Board when dealing with such a matter. 33. The third point urged is that the Board did not apply its mind in considering the application of the petitioners in the two cases. It acted mechanically and its order was conveyed in cycle-styled form. In this connection, reliance is placed upon the fact that Sri B. V. Bhadkamkar, the senior member of the Board of Revenue, merely signed below the office note, writing nothing to indicate his own mind. I see no force in this argument. It is a well-known convention and a well-recognized practice in Government offices that where an officer agrees with an office note, he merely initials and that is enough to indicate his assent to the office suggestion. The whole file including the applications of the petitioners and not only the office note was put up before Sri Bhadkamkar. It must be presumed that on a consideration of all this material, he assented to the office suggestion to reject the two applications. It is not unusual to convey orders in printed or cyclostyled forms, specially when the order relates to a matter which frequently comes up be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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