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TMI Blog1975 (7) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... intment he met with as he steered through the statutory spiral of authorities. Unfortunately, on account of the zigzag course of this litigation which had its deck-by-deck slow motion, more than two decades passed before the High Court could pronounce at long last in favour of the appellant holding that the income in dispute was agricultural income and, therefore, could not be taxed. The State did not carry the case further to this court and thus the decision of the Allababad High Court rendered on March 21, 1963, became final. As a proposition of law, on the facts of the case, the ruling was that such income as arose from mango fruits and fallen trees was agricultural income and, therefore, outside the pale of the Income-tax Act (vide section 4(3) of the Income-tax Act). We have no reason to disagree with this view and proceed to dispose of this writ appeal which has come to us by certificate under article 133(1)(a) of the Constitution on the footing that for all the assessment years with which we are concerned---as will be explained presently---what has been taxed and is in dispute is agricultural income. Some more facts are necessary to bring out the real grievance of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessment orders for the relevant years had become final, the assessee not having taken advantage of his remedy provided for in the statute ; (b) that several years had lapsed between the last impugned order which related to the assessment year 1961-62 and the writ petition which was filed in September, 1968. However, the court made an observation that if so advised, the petitioner may file appeals under section 30 of the Indian Income-tax Act, 1922, and pray for condonation of delay under section 30(2) of the said Act. Sorely discomfited, the assessee has come up to this court hopefully and urged that the various assessment orders were void, that the State was bound to refund what had been illegally levied, that the Central Board should have exercised its power to give proper directions for refund and that in any case justice should be done to the party who should not be penalised for not having filed appeals and second appeals and references to the High Court year after year--a repeat performance which would add to the totality of avoidable litigation since the High Court was seized of the identical point between the same parties. At the first flush it may seem that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otal income and treated as agricultural income by the learned Appellate Assistant Commissioner of Income-tax, Benaras, in this very case but this very point is already under consideration before the hon'ble High Court of Judicature at Allahabad. However, with respect to the learned Appellate Assistant Commissioner and pending the decision of the hon'ble High Court on this point, the sum of Rs. 7,960 is being added back. " But the palliative is absent in the orders relating to many other years and, above all, the orders are all made under section 23(3), which means final assessments---neither provisional assessments being under section 23(3) nor conditional assessments, such orders being unknown to the scheme of the Act. The points in controversy may be briefly formulated : (1) Are the orders of assessment, which have not been assailed, amenable to challenge under article 226 of the Constitution, or is such jurisdiction inhibited because the regular statutory remedies have not been pursued ? (2) Is the appellant guilty of laches to such an extent that the extra-ordinary remedy in writ jurisdiction should not be exercised in his favour ? (3) Are the orders of assessments null ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim is that agricultural income is beyond the legislative competence of Parliament to enact and altogether outside the jurisdiction of the Income-tax Officer. It may well be contended that the impost is ultra vires his powers and, therefore, a nullity. Merely because an order has been passed by the officer and has not been appealed against, it does not become legal and final if otherwise it is void ; for instance, if there is a flagrant violation of natural justice, the order by a Tribunal may be a nullity. However, we need not explore this penumbral area because we are satisfied, for reasons to be set out below, that the writ petition itself is misconceived and is bad for unexplained delay. Even so we may state that the levies for the various years would have undoubtedly been set aside and refund ordered if only the assessee had been diligent enough to make annual appeals to higher authorities. In that sense there is some justice on his side. What is more, in some of the orders, as earlier indicated the Income-tax Officer himself has stated that he is making the assessments finally but he takes note of the pendency of the identical question before the High Court. He has vaguely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has exercised its discretion to refuse, this court declines to disturb such exercise unless the ground is too untenable. To awaken this court's special power gross injustice and grievous departure from well-established criteria in this jurisdiction, have to be made out. In the present case, long years have elapsed not only after the impugned orders but even after the High Court held the taxed income agricultural. The reason for the inaction is stated to be an illusory expectation of suo motu modification of assessment orders on representation by the party. The High Court has examined and dismissed the plea and consequently refused relief. We do not think that in so refusing relief on ground of laches the High Court exercised its discretion arbitrarily or improperly. And the sorry story must thus close. When at the end of the legal tether, the appellant made a plaintive plea for considerateness based on good conscience. No doubt we feel this is a case where, had the party not been optimistically asleep but had diligently appealed, the tax could not have been recovered by the State. We equally see some compassionate merit in his complaint that a few of the assessment orders ..... X X X X Extracts X X X X X X X X Extracts X X X X
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