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TMI Blog1962 (3) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... y of agricultural income-tax on "Commercial crops" grown in the agricultural lands situate within the State. In that "Act" the charging section is section 3, which provides : "3. (1) Agricultural income-tax at the rate or rates specified in Part I of the Schedule to this Act, shall be charged for each financial year commencing from the 1st April, 1955, in accordance with and subject to the provisions of this Act, on the total agricultural income of the previous year of every person..." 3. Section 4 lays down that subject to the provisions of the "Act", the total agricultural income of any "previous year" of any person comprising of all agricultural income derived from any land to which the "Act" is applicable, whether received by him within or without the State, subject to certain exceptions, which are not relevant for our present purpose. The tax liability was imposed by the charging section. In the "Act", there are provisions authorising quantification of the tax imposed and for collecting the same. For our present purpose, it would be sufficient if we refer to sub-section (1) and (5) of section 64 of the & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer, Chickmagalur, proceeded on the basis that the petitioner had "agricultural lands" only in Chickmagalur District and assessed those lands as well as the "agricultural lands" mentioned in the petition filed by his son to agricultural income-tax. He evidently did not consider that the petitioner and his son were separate assessees. He assessed them jointly. This decision of the Agricultural Income-tax Officer, Chickmagalur, was and is not challenged. The petition filed before the Agricultural Income-tax Officer, at Hassan, was forwarded to the Agricultural Income-tax Officer, at Saklespur, where the properties mentioned in the petition are situate. The Agricultural Income-tax Officer, Saklespur, passed a "provisional" order of assessment. Sometime after the petitioner was assessed to agriculture income-tax Officer, Saklespur, Passed a "provisional" order of assessment. Sometime after the petitioner was assessed to agricultural income-tax, as mentioned above, the Agricultural Income-tax Officer Chickmagalur, came to know that the petitioner had not placed the true facts before him; he learnt that the petitioner had "agricultural lands& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no way minimises the gravity of the act of the petitioner. It is said on his behalf that he was unaware of the requirements of the "Act" and the petitions filed by him and his son were the result of mistaken impressions. This explanation, prima facie, does not carry conviction. Even if we accept that explanation, the fact remains that the petitioner by his omissions had deprived the exchequer of a substantial sum of money. We have to now decide whether, in this state of affairs, we should give any relief to the petitioner. Even if we are to hold the order of rectification was made without the authority of law. 10. In his petition, the petitioner has sought two reliefs. Firstly, he has prayed that this court may be pleased to quash the order of the Agricultural Income-tax Officer, Chickmagalur, dated July 20, 1960, (rectification order) by issuing a writ of certiorari. Secondly, he has prayed that this court "may be pleased to issue a writ of certiorari for a direction in the nature of a writ of certiorari quashing the notice of demand dated July 20th, 1960, issued by the Agricultural Income-tax Officer, Chickmagalur". The second relief prayed for is superfluou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case." 13. The next case read to us is the one in Jagannath Hanumanbux v. Income-tax Officer. In that case, the income-tax authority levied what is called "protective assessment" and took "protective] recovery" proceedings. The validity of those proceedings was assailed by means of a petition under article 226 before the High Court of Calcutta. Sinha J. held that the recovery proceedings in question were of doubtful validity. But, at the same time, he declined to grant any relief on the ground that no substantial injustice had been caused to the petitioner. 14. Next, reference was made to the decision in Pooran Singh v. Additional Commissioner, Agra. Therein, their Lordships laid down that the powers conferred by article 226 of the Constitution on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undamental right guaranteed under article 19 of the Constitution is infringed; that being so, he contended, his client had a right to get relief at our hands. It was said that it is not our function to see whether the assessee had come to this court with clean hands or not, as according to the learned counsel for the petitioner, whenever there is an infringement of a fundamental right, the aggrieved party has a right to get relief at the hands of this court "as of course". Therefore we have first to see whether there has been any infringement of fundamental rights. As noticed earlier, the tax liability arose because of the provisions in the "Act". What is being urged is that the petitioner had managed to evade his liability at one stage to a very appreciable extent; but the respondent would not allow him to retain his unlawful gain, as the mistake in question was rectified and that according to the petitioner without the authority of law. It is not a case, where, speaking generally, any injustice had been caused to the petitioner. In truth the petitioner's contention is that he has a right to retain his unlawful gain and that right is a fundamental right. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fee on a business not only takes away the property of the licence but also operates as a restriction on his fundamental right to carry on his business and, therefore, if the imposition of a licence fee is without authority of law it can be challenged by way of an application under article 32, a fortiori also under article 226. These observations have apposite application to the circumstances of the present case. Explanation II to section 2(g) of the Act having been declared ultra vires, any imposition of sales tax on the appellant in Madhya Pradesh is without the authority of law, and that being so a threat by the State by using the coercive machinery of the impugned Act to realize it from the appellant is a sufficient infringement of his fundamental right under article 19(1)(g) and it was clearly entitled to relief under article 226 of the Constitution. That contention that because a remedy under the impugned Act was available to the appellant, it was disentitled to relief under article 226 stands negatived by the decision on this court in State of Bombay v. United Motors (India) Ltd. above referred to. There it was held that the principle that a court will not issue a prerogative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary reliefs and it is also clear from the same that those reliefs will be granted only if there are no circumstances disentitling the petitioner to get those reliefs. That is hardly the case here. 24. Next reference was made to the decision in Santosha Nadar v. First Additional Income-tax Officer, Tuticorin. Rajagopalan, Offg. C.J., who delivered the judgment of the Bench in that case, observed : "It is true that a writ of certiorari is a discretionary relief and normally a writ of certiorari will not be viewed by this court as a parallel remedy which an assessee can seek simultaneously with the statutory remedies open to him under the Income-tax Act. That the petitioner as an assessee failed to take a plea open to him in the assessment proceedings and in the appeals that he preferred, cannot, under normal circumstances, place him in a better position to seek the discretionary relief of a writ of certiorari. In the present case the petitioner asked also for a writ of Prohibition (W. P. No. 1011 of 1958). If any order of assessment was without jurisdiction and if any portion of that order is still operative in the sense that anything is sought to be recovered from the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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