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TMI Blog1958 (9) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... plied to the Burma authorities for relief from the doubt taxation he had suffered and obtained a refund of ₹ 19,586-14-0 in March, 1954. On 15th March, 1953, that is after the termination of the assessment proceedings in India and in Burma and even before he applied to the authorities in Burma for relief, the petitioner applied to the first respondent, the assessing authority in India, for relief from the double taxation to which the assessee had been subjected in the year of assessment 1947-48. That application was rejected on the only ground that it had been preferred beyond the period of four years prescribed by section 50 of the Income Tax Act. The Assistant Commissioner agreed with that view and dismissed the appeal preferred by the petitioner. The Central Board of Revenue, which the petitioner approached for redress, declined to interfere. 3. The petitioner applied under article 226 of the Constitution for the issue of a writ of certiorari to set aside the orders of the respondents, the Income Tax Officer and the Assistant Commissioner. 4. The only question decided by the department, that is, by respondents Nos. 1 and 2 was that of limitation. Whether apart from that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred in conformity with rule 40A. Rule 40A and 40B have been left intact despite the subsequent legislative changes to which I shall refer. 8. India attained independence on 15th August, 1947, and Burma on 4th January, 1948. By the India Provisional constitution Order, 1947, dated 14th August, 1947, promulgated under the provisions of the Indian Independence Act, 1947, section 159 of the government of India Act stood repealed in effect. With that the basis for the 1936 Order disappeared, and the 1936 Order itself ceased to have any statutory force thereafter. 9. Section 49A(1) of the Income Tax Act, as it factually stood, on 1st April, 1947, ran : The Central Government may, by notification in the Official Gazette, make provision for the granting of relief in respect of income on which has been paid both Income Tax (including super-tax) under this Act and Dominion Income Tax. 10. Section 49A(2) explained what Dominion Income Tax meant. Burma had not then come within the scope of section 49A. Section 49A was amended by section 11 of Act 48 of 1948, to bring Burma within the scope of section 49A(1). Act 48 of 1948 was published on 8th September, 1948. But by section 1(1) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntry in respect of the same income, he shall be entitled to the deduction from the Indian Income Tax payable of a sum equal to be half of such Indian Income Tax or to one half of such tax payable in the said country, which ever is the less. 16. Thus the position on 1st April, 1947, was that, with reference to Income Tax levied on an assessee both in India and Burma for 1947-48, the grant of relief in India, with which I am now concerned, was regulated by the 1936 Order. But this provision lapsed on 15th August, 1947, when the India (Provisional Constitution) Order, 1947, was issued under the authority of the Indian Independence Act, 1947. Section 49A(1) of the Income Tax Act, which was amended to include Burma, came into force only on 30th March, 1948. Even the amended section 49A could not be invoked by the petitioner, as the necessary notification was never issued by the Government of India. The only other statutory provision the petitioner could invoke was section 49D. That stood unaltered all through the year 1947-48. One of the factors to be established before section 49D could be applied was that in 1947-48 the laws of Burma did not provide for any relief in respect of Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it appears more logical to apply the law as it stood at the commencement of the assessment year. In this case the assessee could theoretically at least have applied for relief at any time after 1st April, 1947. Though it is neither the date of the application nor the date of the order that determines the issue, which is the statutory provision under which relief could be granted, if an application had been presented on 1st April, 1947, and disposed of before 14th August, 1947, it was obviously the law in force on 1st April, 1947, that is, the 1936 Order, that would have applied. That the application was made later and dealt with even later does not appear to me to affect the principles to apply. Once again I must stress the absence of any statutory provision to direct that the law in force at the commencement of the assessment year shall not apply. 19. The learned counsel for the petitioner urged that, if for any reason the 1936 Order was held inapplicable, since the petitioner could not avail himself of the amended section 49-A, which was the law in force at the end of the assessment year, in the absence of any notification issued by the Government, the assessee could claim rel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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