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TMI Blog1973 (2) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Ashurst Morris Grisp & Co., informed the appellant's firm that the said London solicitors acted for the said West German company in London and had instructed to retain Mr. Blanco White, a barrister with considerable practice in patent actions in London, in the said suits. The appellant's firm, however, did not deliver any brief to Mr. Blanco White nor did the appellants or any one of them know on what fees Mr. Blanco White had been engaged inasmuch as the copies of the brief delivered to Mr. Blanco White by the said London solicitors did not reveal the amount of such fees. The appellant's firm did not pay or undertake any obligation to pay any fees to the said Blanco White. On 27th January, 1970, the said suits were called on for hearing. The hearing lasted for several days and it was concluded on the 16th of February, 1970. After the hearing of the said suits was over, Mr. Blanco white left India. Thereafter, on 19th February, 1970, the appellant's firm received a letter from the respondent No. 1, the Income-tax Officer, "A" Ward, Foreign Section, whereby the appellant's firm was informed that the said respondent understood that M/s. Orr, Dignam & Co. was acting as solicitor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t's firm that he was unable to drop the proposal to treat the appellant's firm as an agent of the non-resident, Mr. Blanco White, on the basis of the contentions made by the appellant's firm. The firm might make further submissions on the 18th of April, 1970, when the matter would he heard. Being aggrieved by the said communication of the Income-tax Officer to treat the firm of M/s. Orr, Dignam & Co. as an agent of Mr. Blanco White under section 161(1) of the Income-tax Act, 1961, the appellants moved an application under article 226 of the Constitution in this court and obtained a rule nisi. The said rule was finally heard and discharged by Sabyasachi Mukharji J. on 12th of May, 1971, upon the view that the said application was premature and the appellant had an alternative remedy under the Income-tax Act. The learned trial judge further found that having regard to the nature of the question involved in the instant case, the Income-tax Officer had jurisdiction to decide the matter. The appellants being aggrieved by the said judgment and order, dated 12th of May, 1971, preferred the present appeal. Mr. Ginwalla, appearing on behalf of the appellants, contends that the appellants h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led as an advocate under the said Act to appear before it or him in any particular case. Under sub-section (3) of section 34 of the said Advocates Act, 1961, any rule made by a High Court under its Letters Patent shall continue to remain in force so far as consistent with the provisions of the said Act. Under Chapter 1, rule 38 of the Rules of the High Court Calcutta, Original Side (5th edition), an advocate of any other High Court in the Union of India may, with the permission of the Chief Justice, appear and plead for the parties in matters arising in or out of the original jurisdiction, or in or out of the appeals therefrom, provided he is a member of the Bar in England or of Northern Ireland, or a member of the Faculty of Advocates in Scotland, or a person entitled to appear and plead on the Original Side of the High Court of Judicature at Bombay ; and that, he is properly instructed by an attorney. The first part of rule 38, Chapter 1 of the Rules of the High Court at Calcutta, Original Side, stands impliedly repealed as that part of the rule is inconsistent with or repugnant to section 32 of the Advocates Act, 1961. Therefore, it follows that although Mr. Blanco White is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case was one but it was the outcome of the continuity of the agency which was spread over for a period of more than six years. So, it cannot be said that there was no element of continuity and the transaction was a stray or an isolated one. Mr. Ginwalla next contends that the appellants could not be treated as an agent with respect to the income which accrues or arises, directly or indirectly, through or from any business connection in India. In order that income can be said to have accrued or earned by the assessee, Mr. Ginwalla submits, it is not only necessary that the assessee must have contributed to its accruing by rendering services or otherwise but he must have created a debt in his favour. A debt must have come into existence if the assessee acquires a right to receive the income, and the income can be said to have accrued to him. Unless and until his contribution is effective in bringing into existence a debt or a right to receive the payment, it cannot be said that any income has accrued to him. A barrister's fees. Mr. Ginwalla submits, are honorarium. He has no right to receive them. He cannot sue his client for his fees for professional services. Mr. Blanco White ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law or tradition cannot override the general law of the land. Therefore, we are unable to accept the contentions of Mr. Ginwalla that the income did not accrue or arise to Mr. Blanco White as he had got no right to receive his fees and no debt was created. Mr. Ginwalla, lastly, contends that the learned trial judge was wrong in holding that the existence of alternative remedy provided under the Income-tax Act was an adequate and proper remedy. The principle that a court will not issue a prerogative writ does not apply where a party has come to the court with an allegation that his fundamental right had been infringed and the Income-tax Officer had no jurisdiction to treat the appellant's firm as an agent of Mr. Blanco White under sections 161 and 163(1) of the Income-tax Act, 1961. The conditions precedent for the assumption of jurisdiction under section 163(1) of the Act were not satisfied and the appellants came to the court at the earliest opportunity. It is true that the alternative remedy is not a bar in cases where there have been allegations of infringement of fundamental right and/or illegal exercise of jurisdiction or assumption of jurisdiction by an authority not vested ..... X X X X Extracts X X X X X X X X Extracts X X X X
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