1956 (3) TMI 2 - SUPREME COURT

Whether sub-section (7-A) of section 5 of the Indian Income-tax Act, 1922, and the said order of transfer made thereunder are unconstitutional in that they infringe the fundamental rights guaranteed to the petitioner by articles 14, 19(1)(g) and 31 of the Constitution?

Held that:- Its partners or principal officers will have to be away from the head office for a considerable period neglecting the main business of the firm. There may be no suitable place where they can put up during that period. There will certainly be extra expenditure to be incurred by it by way of railway fare, freight and hotel expenses. Therefore the reality of the discrimination cannot be gainsaid. In the circumstances this substantial discrimination has been inflicted on the petitioner by an executive fiat which is not founded on any law and no question of reasonable classification for purposes of legislation can arise. Here "the State" which includes its Income-tax Department has by an illegal order denied to the petitioner, as compared with other bidi merchants who are similarly situate, equality before the law or the equal protection of the laws and the petitioner can legitimately complain of an infraction of his fundamental right under article 14 of the Constitution.

In the view we have taken on the construction of sub-section (7A) of section 5 and the petitioner's rights under article 14, it is not necessary for us, on this occasion, to express any opinion on the contention that the inconvenience and harassment referred to above constitute an imposition of such an interference as amounts to an unwarranted restriction on the petitioner's rights under article 19(1)(g) or a violation of his rights under article 31. Appeal allowed.