TMI Blog1953 (9) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... n field to meet a possible argument to the effect that in view of the assessment, O. P. No. 53 of 1952 should not be considered on the merits at any rate as far as the Cochin State income for the assessment year 1123 is concerned. The learned Advocate-General submitted that he would rather have a decision on the merits in respect of O. P. Nos. 53 and 57 of 1952 and in view of this O. P. No. 56 of 1952 will not require any further consideration. 4. The notices served on the petitioner under section 44 of the Cochin Income-tax Act, 1117, are Exhibits III and IV and those under section 47 of the Travancore Income-tax Act, 1121, are Exhibits I and II, all dated 12th February, 1952. 5. The main points urged on behalf of the petitioner are clearly summarised in paragraph 13 of the affidavit affirmed by the petitioner on the 16th June, 1952. (a) Under the Constitution all laws of a State to the extent they are inconsistent with the Constitution became void. Tax on income would be collected only by the Center and not by a State except for the limited period prescribed by article 277. With the passing of the Finance Act which made Travancore-Cochin State became void and inoperative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... using the provisions of the statute with ulterior purposes. The proceedings taken by him are therefore illegal and void. 6. Apart from the three questions mentioned above the only other question that has to be considered is the preliminary argument of the learned Advocate-General that the petitions are not maintainable on the ground that this court has no jurisdiction to issue a writ in these matters under any circumstance whatsoever as the income-tax law forms a self-contained code affording the aggrieved assessee adequate remedies including a reference to this court. The argument was not that this court should consider the existence of alternative remedies in deciding whether a writ should issue in a given case but that it has no jurisdiction whatsoever even if the action complained about was founded on a flagrant assumption of a non-existent jurisdiction. This is a very large claim and one which in our opinion is clearly unsustainable. To adopt a characteristic phrase of Scrutton, L. J., in Czarnikow v. Roth, Schmidt and Company, we are not prepared to agree that there is any such Alsatia in which the judicial writs do not run. 7. We do not consider the existence of an alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion cannot be permitted when there is no illegality or fatal irregularity in the pursuit of the procedure provided by the Act or a usurpation or excessive exercise of jurisdiction. 9. Point (a) : Under article 227 of the Constitution any tax, which, immediately before the commencement of the Constitution, was being levied by the Government of any State may notwithstanding its inclusion in the Union List continue to be levied and to be applied to the same purposes until provision to the contrary is made by Parliament by law and section 13 of the Finance Act, 1117, and the Travancore Income-tax Act, 1121, specifically provides that the repeal will leave unaffected the levy, assessment and collection of income-tax and super-tax in respect of any period not included in the previous year for the purposes of assessment under the Indian Income-tax Act, 1922 (XI of 1922), for the year ending on the 31st day of March, 1951, or for any subsequent year, or, as the case may be, the levy, assessment and collection of the tax on profits of business for any chargeable accounting period ending on or before the 31st day of March, 1949. In view of this we are not prepared to accept the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be included in a notice under sub-section (2) of section 27, and may proceed to asses or re-asses such income, profits or gains, and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section. Similar is the wording of section 47 of the Travancore Income-tax Act, 1121. The only question therefore that arises for consideration is whether the notices concerned (Exs. I, II, III and IV) were issued in pursuance of a discovery in consequence of definite information . The learned Advocate-General submitted at the close of his argument that we need not refer in this connection to any exhibit other than Exhibit VIII and if we came to the conclusion that the statements embodied therein did not amount to definite information leading to a discovery in respect of the petitioners assessment years 1123 and 1124 the petitioner is entitled to succeed subject to the acceptance or otherwise of the preliminary argument which we have already dealt with in paragraphs 6 to 8 above. 13. We have carefully perused Exhibit VIII, the relevant portions of which are given in the Appendix hereto (which shall form part of this ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
