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TMI Blog1966 (1) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... a writ of habeas corpus to set the assessee at liberty. That the assessee is a defaulter is not in dispute here; his liability to be arrested and detained in civil prison for non-payment of tax assessed under the Indian Income-tax Act, 1922, is also not disputed. The controversy is only of the authority to arrest and detain the assessee for taxes assessed under the Travancore Income-tax Act, 1121. We are not shown any provision in the Travancore law for the arrest and detention of an assessee in prison for recovery of income-tax. Contention of counsel for the revenue is that with the repeal of the Travancore Act on the extension of the Indian Act to the area by the Finance Act, 1950, the tax that remained due under the Travancore Act became tax due under the Indian Act realisable under all or any of the modes prescribed by the latter Act. That has to be investigated here. Section 13(1) of the Finance Act, 1950, so far as it is relevant here, reads : " If immediately before the 1st day of April, 1950, there is in force in any Part B State ... any law relating to income-tax or super-tax . . . that law shall cease to have effect except for the purposes of the levy, assessment and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly, no appeal against the order of the Income-tax Officer was competent." It follows that in regard to matters relating to income-tax for periods anterior to the assessment year 1950-51, the law in an erstwhile Part B State is as provided in the relevant State Act; and the Indian Income-tax Act, 1922, has no relevance. In A. N. Lakshman Shenoy v. Income-tax Officer, Ernakulam, the Supreme Court has held: "Moreover, the collocation of the words, ' levy, assessment and collection' (in section 13(I) of the Finance Act, 1950) indicates that what is meant is the entire process by which the tax is ascertained, demanded and realised... We approve of the decision in Hazari Mal Kuthiala v. Income-tax Officer, Ambala, where Bhandari C. J. said : ' These three expressions, 'levy', ' assessment ' and 'collection' are of the widest significance and embrace in their broad sweep all the proceedings... for raising money by the exercise of the power of taxation . . .' (One of the recommendations of the Indian States Finances Enquiry Committee 1948-49, was :) '(e) It will be necessary to provide that all matters and proceedings pending under, or arising out of, the pre-existing State Acts sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was illegal and adverting to the necessity to decide the legality of assessment for the pre-Constitution period). The necessity for doing so is, however, obviated by reason of the fact that the assessment is one composite whole relating to the pre-Constitution as well as the post-Constitution periods and is invalid in toto. There is authority for the proposition that when an assessment consists of a single undivided sum in respect of the totality of the property treated as assessable, the wrongful inclusion in it of certain items of property which by virtue of a provision of law were expressly exempted from taxation renders the assessment invalid in toto. The Privy Council have observed in Bennett and White (Calgary) Ltd. v. Municipal District of Sugar No. 5: 'When an assessment is not for an entire sum, but for separate sums, dissected and earmarked each of them to a separate assessable item, a court can sever the items and cut out one or more along with the sum attributed to it, while affirming the residue. But where the assessment consists of a single undivided sum in respect of the totality of property treated as assessable, and when one component (not dismissible as 'de mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ursuant to which the present arrest and detention of the assessee has been effected is dated 16th December, 1965, which is after the disposal of O.P. No. 819 of 1963 and is made by a different officer on independent consideration of facts. We are afraid that the decision in O.P. No. 819 of 1963 has little bearing on the question in the present motion and cannot be urged as res judicata here. It is also contended by the revenue that the assessee has preferred an appeal against the order (exhibit P- 1) for his arrest and detention before the Board of Revenue which is still pending disposal and that therefore the present motion under article 226 of the Constitution should not be entertained. Whether the existence or the invocation of an alternative remedy would bar a motion under article 226 of the Constitution depends largely on the facts and circumstances of each case. Article 21 of the Constitution guarantees " No person shall be deprived of his life or personal liberty except according to procedure established by law." It is one of the essential functions of this court to watch and guard the fundamental rights guaranteed to citizens by the Constitution. The complaint in this moti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liberty forthwith." Further, the assessee has filed a supplemental affidavit yesterday saying : "...I crave leave (that this) may be treated as part of the affidavit of mine sworn to on instructions on 20th December, 1965. Being then under detention in Trivandrum I could not give necessary and sufficient instructions to the counsel at Ernakulam. I had instructed my wife, Mrs. Annamma Kunjacko, to give the necessary instructions and papers to counsel at Ernakulam and herself to file a petition for the relief among others that I be set at liberty. I have perused the affidavit filed along with the original petition and the reply affidavits filed by her and I adopt all the allegations and contentions raised therein. I reiterate that the petition and affidavit were filed by my wife at my instance." As has been indicated by the Supreme Court in Ranjit Singh v. State of Pepsu, too technical a view should not be taken in such matters when the complaint is of deprivation of a citizen's personal liberty without the authority of law. In the light of the affidavits filed by the assessee himself in the case, we overruled the contention as unsubstantial. In the light of our decision on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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