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TMI Blog1950 (11) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the resp. a sum of ₹ 4,67,657-1-0 became due payable by the petnr. to the Income Tax authorities. On 18-11-1948, the resp. caused a notice of attachment under Section 46 (5A), Income Tax Act, 1922, to be issued served upon the Chrestian Mica Industries Ltd., the employers of the petnr. By the said notice of attachment, the said Messrs. Chrestian Mica Industries Ltd. were required to pay to the resp. forthwith any money due from them to the petnr. or held by them for or on account of the petnr. also to pay any money which may become due to him or any money which the said Messrs. Chrestian Mica Industries Ltd. may subsequently hold for or on account of the petnr. within the next three months. On 21-12-1948, the resp. forwarded to the office of the Certificate Officer, 24 Parganas, Alipore, a certificate for ₹ 4,67,657-1-0 under Section 46 (2), Income Tax Act for recovery of the said sum by the Certificate Officer under the Bengal Public Demands Recovery Act, 1913. The said certificate was filed with the Certificate Officer, 24 Parganas, Alipore, the case was numbered registered as No. 201 I. T. of 1948-49. After having forwarded to the office of the Certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en pleased to grant me instalments of ₹ 5000 p. m. I would, therefore, request you to withdraw all notices under Section 46 (5A) which you have issued for the realisation of the aforesaid dues so that my client abovenamed may be able to make the payments according to the instalments granted that he may have something to live upon. Nothing was done regarding the said appln. the said appln. has been kept pending since May 1950 no order on the same to the knowledge of the petnr. has been passed by the resp.; but the resp. in his affidavit in opposition has stated that the same was rejected on 5-6-1950. Under the circumstances the petnr. has made the present appln. for the reliefs mentioned. 3. Dr. Pal appearing on behalf of the petnr. contended before me that in view of the order passed by the Certificate Officer on 25-5 1950 granting instalments the resp. should either withdraw the attachment which had been made on 18-3-1949 or at least modify the same. He relies on Section 46 (5A) contends before me that in any event the attachment which has been effected by the notice of 18-3-1949, should be revised to this extent, namely, that the employers of the petnr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice so as to make it consistent with the order for payment by instalments which has been due. In other words, he should in any event direct the debtors of the assessee to pay at the rate of ₹ 5000 p. m. The expression the amount due appearing in Section 46 (5a), according to him, must mean the amount which becomes due for payment; in other words the amounts of the instalments as when they fell due. 6. Mr. Meyer appearing on behalf of the resp. on the other hand contends that the amount due must mean the whole of the amount for which the assessee has been assessed by the Income tax Officer which has to be paid. 7. I have carefully considered this matter but I cannot accept Mr. Meyer's contention I accept the contention of Dr. Pal on this point. It seems to me that after the Certificate Officer has allowed instalments at ₹ 5000 p.m. the assessee has the right to pay only ₹ 5000 p. m. the Income tax authorities would be under an obligation to take, so long that order stands, only at such instalments. If that is so, then the Income Tax Officer cannot direct the debtors of the assessee to pay anything more than at the rate of ₹ 5000 p. m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the maintainability of the present appln. 9. Dr. Pal on behalf of the petnr. on the other hand contends that the appln. before me is under Article 226, Indian Constitution Article 226, Indian Constitution, cannot be subject to the provisions of Income Tax Act. In other words he contends that Article 226 of the Constitution gives to the H. C. very wide powers which cannot be fettered by any provisions of any Act. 10. The circumstances under which the Ct. can interfere with an action of the executive has been the subject matter of decision by the Ct. of Appeal of this Ct. Banerjee J. sitting with Harries C. J. in a recent decision carefully laid down the principles on which this Ct. can interfere with the action of the executive. In Amulya Pal v. R. N. Roy 54 C. W. N. 850, Banerjee J. observed as follows : The resp. must act within the four corners of the authority given him by the Act cannot act beyond that authority. In the subsequent case of Patrishaw v. R. N. Roy 54 C. W. N. 855, Banerjee J. again observed as follows : The only question before the Ct. when the matter is brought before it, is to see whether (1) the order has been made by a competent author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari, or any of them for the enforcement of any of the rights conferred by Part III for any other purpose. Now looking at the Article itself one does not find any fetter to the same. It is not made subject to any existing laws or to any restrictions imposed by the law. A reference to some other provisions of the Indian Constitution makes this position more clear. Article 225 of the Constitution lays down : Subject to the provisions of this Constitution to the provisions of any of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of the law administered in any existing High Court, the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court to regulate the sittings of the Court of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution. There is a proviso to this Article Which is not necessary to be considered. 11. Thus, under Article 225, Indian Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 227, Indian Constitution, gives them the right to interfere in cases of decrees which have already been passed under which rights have been vested. The principle on which their Lordships proceeded in deciding that case is that the rights which have already vested under decrees which have been passed, cannot be interfered with under Article 227, Indian Constitution, their Lordships relied on the decision of the Judicial Committee in Delhi Cloth General Mitts Co. Ltd. v. Income-tax Commissioner, Delhi the principle laid down, namely, that while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. I also respectfully agree with the view which was taken by their Lordships. Rights which have already accrued to the parties cannot be taken away unless clear provisions have been made to that effect, Article 227 does not purport to take away that right. But these considerations, to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Appellate Tribunal, the time within which such appeal may be made has not expired, or (b) the order is pending on an appeal before the Appellate Assistant Commissioner or has been made the subject of an appeal to the Appellate Tribunal or (c) the order has been made more than one year previously. 'Sub-section (2) which is important for the present purpose runs as follows : The Commissioner may, on application by an assessee for revision of an order under this Act, passed by any authority subordinate to the Commissioner, made within one year from the date of the order, call for the record of the proceeding in which such order was passed, and on receipt of the record may make such enquiry or cause such enquiry to be made, and subject to the provisions ,of this Act, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit. Then there is a proviso which is in the same terms as the proviso to Sub-section (1). The question for my decision is whether the remedy provided by Section 33A is an adequate legal remedy whether on the facts circumstances of this case the petnr. could have availed himself of the same. The remed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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