TMI Blog1927 (8) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... it would lie. The plaintiff appealed to the District Court, but the appeal was summarily dismissed under Order 41, Rule 11. He now comes to the High Court in second appeal. 2. The facts as given in the plaint are somewhat scanty, but they have been amplified by appellant's advocate in argument. 3. It would appear that Mr. R.N. Singha is a medical practitioner. He bought a chemist's shop known as the Bassein Pharmacy and held it in his own name for a time. Afterwards he transferred it to his wife's name and for one or two years his wife paid Income Tax on the income accruing from the business. It was after this that the present trouble arose. His contention is that he is Mr. R.N. Singha, Medical Practitioner of 18, Myenu Ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been mentioned in the memorandum of appeal. A large number of cases has been quoted, but most of them are only quoted by way of analogy and are not directly to the point. The appellant relies almost entirely upon Rahemtulla Haji v. Secretary of State A.I.R. 1226 Bom. 50. This is a. case in which it was held that the provisions of Section 39 of the former Indian Income Tax Act, corresponding to Section 67, present Income Tax Act, had no application to a case where the assessment is clearly ultra vires. In that case the Income Tax Collector sought to assess a non-resident in British India on profits made by him at branches which were also outside British India and which were not received by him in British India. It was held that as the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f highways are I am unable to see how this case helps the appellant in the present case. The question then is, is there anything, on the face of the plaint, to show that the Income Tax Officer has acted ultra vires? There Was a business, the Bassein Pharmacy. Dr. R.N. Singha was obviously the man who had the management of it. As a medical pratitioner, a professional man, one can understand that the Income Tax Officer had his eye upon him as a person whose income might be assessable to Income Tax. He served a notice upon him. The notice was not addressed to the proprietor of the pharmacy. It was addressed to a certain individual who might, on the face of it, be regarded as this. The fact that the word proprietor was placed after his name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executor of an estate. The Collector called on him to pay tax on certain income accruing in respect of the estate. He objected. The objection was disallowed and so there was an appeal against the order disallowing it and ultimately Forbes filed a suit to recover the money paid exactly as in the present case, The law applicable was the former Income Tax Act and the barring section was Section 39. It was argued that Section 39 was a bar to the suit. The Calcutta High Court found that the suit was barred. The head-note states: it is the Collector's duty to determine what persons are chargeable in respect of sources of income other than salaries and pensions, profits of companies and interest on securities. 8. The income sought to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ictum: Now whenever a statue deals with certain rights it is easy to conclude that it deals with the total ambit of those rights and leave nothing standing outside the provisions of the; statute. 11. In view of what I have said and relying particularly upon the Calcutta case-of Forbes v. Secretary of State [1915] 42 Cal. 151, already mentioned, I would hold that Section 67 bars the present case. It is, I note a case for the recovery of money but that money has been taken on, on the face of 1 it legally under an assessment made in'. due form. It is only contended that the: assessment is erroneous, so unless the assessment can be proved to be erroneous, the money is rightfully taken. I hold; therefore, that this case comes within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Secretary of State for India. To prove that Section 67 is ultra vires, the plaintiff has got to show that a suit of this nature for recovery of revenue paid would have lain against the East India Company I have not been referred to any case in which this has been done. 14. The respondent cited one case, Spooner v. Juddow [1846] 4 M.I.A. 353, to show that a case concerning revenue could not be filed in a civil Court. But that was filed on the original side of the supreme Court of Bombay which was specifically debarred from entertaining such suits by its charter. This is no guidance. I must assume until the contrary is proved that as Act passed by the Indian Legislature is valid until and unless the contrary has been proved. The contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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