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TMI Blog1962 (3) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... in the agricultural lands situate within the State. In that Act the charging section is section 3, which provides : 3. (1) Agricultural income-tax at the rate or rates specified in Part I of the Schedule to this Act, shall be charged for each financial year commencing from the 1st April, 1955, in accordance with and subject to the provisions of this Act, on the total agricultural income of the previous year of every person... 3. Section 4 lays down that subject to the provisions of the Act , the total agricultural income of any previous year of any person comprising of all agricultural income derived from any land to which the Act is applicable, whether received by him within or without the State, subject to certain exceptions, which are not relevant for our present purpose. The tax liability was imposed by the charging section. In the Act , there are provisions authorising quantification of the tax imposed and for collecting the same. For our present purpose, it would be sufficient if we refer to sub-section (1) and (5) of section 64 of the Act . 4. Section 64(1) says : 64. (1) Any person who derives agricultural income from land not exceeding five th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in the petition filed by his son to agricultural income-tax. He evidently did not consider that the petitioner and his son were separate assessees. He assessed them jointly. This decision of the Agricultural Income-tax Officer, Chickmagalur, was and is not challenged. The petition filed before the Agricultural Income-tax Officer, at Hassan, was forwarded to the Agricultural Income-tax Officer, at Saklespur, where the properties mentioned in the petition are situate. The Agricultural Income-tax Officer, Saklespur, passed a provisional order of assessment. Sometime after the petitioner was assessed to agriculture income-tax Officer, Saklespur, Passed a provisional order of assessment. Sometime after the petitioner was assessed to agricultural income-tax, as mentioned above, the Agricultural Income-tax Officer Chickmagalur, came to know that the petitioner had not placed the true facts before him; he learnt that the petitioner had agricultural lands in Hassan District as well. Hence he enquired into the matter and reassessed the petitioner, purporting to act under section 36(1) of the Act , which says : 36. (1) The authority which passed an order on appeal or re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onviction. Even if we accept that explanation, the fact remains that the petitioner by his omissions had deprived the exchequer of a substantial sum of money. We have to now decide whether, in this state of affairs, we should give any relief to the petitioner. Even if we are to hold the order of rectification was made without the authority of law. 10. In his petition, the petitioner has sought two reliefs. Firstly, he has prayed that this court may be pleased to quash the order of the Agricultural Income-tax Officer, Chickmagalur, dated July 20, 1960, (rectification order) by issuing a writ of certiorari. Secondly, he has prayed that this court may be pleased to issue a writ of certiorari for a direction in the nature of a writ of certiorari quashing the notice of demand dated July 20th, 1960, issued by the Agricultural Income-tax Officer, Chickmagalur . The second relief prayed for is superfluous. Further, any steps taken to collect the assessment levied cannot be considered as judicial acts and the same are not amenable to the certiorari jurisdiction of this court. 11. Sri K. Srinivasan, the learned counsel for the petitioner, submitted that it would be more appropriate] t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case. 13. The next case read to us is the one in Jagannath Hanumanbux v. Income-tax Officer. In that case, the income-tax authority levied what is called protective assessment and took protective] recovery proceedings. The validity of those proceedings was assailed by means of a petition under article 226 before the High Court of Calcutta. Sinha J. held that the recovery proceedings in question were of doubtful validity. But, at the same time, he declined to grant any relief on the ground that no substantial injustice had been caused to the petitioner. 14. Next, reference was made to the decision in Pooran Singh v. Additional Commissioner, Agra. Therein, their Lordships laid down that the powers conferred by article 226 of the Constitution on the High Courts are certainly very wide and confer on them a discretion of a most extensive character; that discretion, however, must necessarily be exercised in accordance with judicial considerations and well established principles; the High Court will certainly not hesitate in issuing an appropriate wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the petitioner, whenever there is an infringement of a fundamental right, the aggrieved party has a right to get relief at the hands of this court as of course . Therefore we have first to see whether there has been any infringement of fundamental rights. As noticed earlier, the tax liability arose because of the provisions in the Act . What is being urged is that the petitioner had managed to evade his liability at one stage to a very appreciable extent; but the respondent would not allow him to retain his unlawful gain, as the mistake in question was rectified and that according to the petitioner without the authority of law. It is not a case, where, speaking generally, any injustice had been caused to the petitioner. In truth the petitioner's contention is that he has a right to retain his unlawful gain and that right is a fundamental right. We do not think that either clause (f) or (g) of article 19(1) of the Constitution can be availed of to support such a contention. 17. Article 19(1)(f) and (g) of the Constitutions guarantee the property rights as well as the rights to practice any profession, or to carry on any occupation, trade or business by a citizen. None ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have apposite application to the circumstances of the present case. Explanation II to section 2(g) of the Act having been declared ultra vires, any imposition of sales tax on the appellant in Madhya Pradesh is without the authority of law, and that being so a threat by the State by using the coercive machinery of the impugned Act to realize it from the appellant is a sufficient infringement of his fundamental right under article 19(1)(g) and it was clearly entitled to relief under article 226 of the Constitution. That contention that because a remedy under the impugned Act was available to the appellant, it was disentitled to relief under article 226 stands negatived by the decision on this court in State of Bombay v. United Motors (India) Ltd. above referred to. There it was held that the principle that a court will not issue a prerogative writ when an adequate alternative remedy was available could not apply where a party came to the court with an allegation that this fundamental right had been infringed and sought relief under article 226. Moreover, the remedy provided by the Act is of an onerous and burdensome character. Before the appellant can avail of it, he has to deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the judgment of the Bench in that case, observed : It is true that a writ of certiorari is a discretionary relief and normally a writ of certiorari will not be viewed by this court as a parallel remedy which an assessee can seek simultaneously with the statutory remedies open to him under the Income-tax Act. That the petitioner as an assessee failed to take a plea open to him in the assessment proceedings and in the appeals that he preferred, cannot, under normal circumstances, place him in a better position to seek the discretionary relief of a writ of certiorari. In the present case the petitioner asked also for a writ of Prohibition (W. P. No. 1011 of 1958). If any order of assessment was without jurisdiction and if any portion of that order is still operative in the sense that anything is sought to be recovered from the petitioner under such an order of assessment passed wholly without jurisdiction or in excess of the jurisdiction vested in the Income-tax Officer, the issue of a writ of prohibition would not be a matter of discretion, and in that respect it differs from the discretionary relief of a writ of certiorari. In the circumstances of this case we are of the opi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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