TMI Blog1977 (12) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. In the premises, a sum of Rs. 1,13,588 became refundable to the petitioner. The ITO, accordingly, allowed interest on this sum under 214(1) of the I.T. Act, 1961. The assessee, the petitioner herein, preferred an appeal from the order of the assessment. The AAC, on or about 13th December, 1972, allowed in part the appeal. He reduced the total income by Rs. 2,15,915. The AAC directed that assessment be revised by the ITO. On 21st of December, 1972, the ITO passed an order reducing the total assessed income to Rs. 97,229 on the basis of the order of the AAC. The tax payable was thus Rs. 56,228. The ITO, however, did not allow interest on the difference between the advance tax paid and the tax payable according to the revised order. On the 13th of March, 1973, an application was made to the ITO for rectification under s. 154 of the I.T. Act, 1961. On 21st of July, 1973, the rectification application was rejected on the ground that the regular assessment under s. 214(1) of the I.T. Act, 1961, meant assessment under s. 143 of the Act. Thereafter, an appeal was preferred against the order of the ITO to the AAC. The AAC took the same view. An appeal was thereafter preferred from the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny challenged the said finding in the writ petition to this High Court. I held that the obligation under s. 214 of the Act was to pay interest on the amount by which the advance tax paid exceeded the tax determined on regular assessment. An order which was made by the ITO to give effect to the order of the AAC was held by me to be an order of assessment under s. 143 of the Act. If that was the position then in view of s. 214 of the Act the regular assessment, as contemplated by s. 214(1) of the Act, should be the assessment made by the ITO initially or the first assessment made by the ITO if there was no appeal therefrom, but in case there was an appeal the order passed by the ITO finally to give effect to the direction, if any, of the appellate authority. Having regard to the scheme of the Act and the context in which the expression has been used, "regular assessment" under s. 214 would include, it was held by me, in the particular facts and circumstances of the case, referred to hereinbefore, to be an assessment made by the ITO pursuant to the direction of the AAC. I had accordingly set aside the order of the Commissioner and directed him to reconsider the matter in accordance wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment. But I should have thought that there was nothing also in the context of s. 214 which required that the expression "regular assessment" be confined to the first or the original assessment. As I have indicated before, the expression "regular assessment" is of wider amplitude and need not be confined to the first or the original assessment. The legislature has not chosen to use the expression "first" or "the original assessment" and, therefore, the expression "regular assessment" should not be given a meaning different from the meaning which may be attributable to that expression in ss. 209 and 210 and as I have pointed out, in my previous decision, if the expression "regular assesment" is given the meaning first or the initial assessment in ss. 209 and 210 certain anomalies would result which have also been noticed by the learned judges of the Division Bench of the Allahabad High Court. If an assessment is made by an officer improperly or erroneously will that assessment be more "regular" than an assessment which is made by the authorities concerned pursuant to an order of the appellate authorities and which remained unchallenged ? For the reasons aforesaid, I would pref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o public servant was property attracting art. 31(1) of the Constitution. It was further held in the said decision that the State could not by an executive order curtail or abolish any right of the public servant to receive pension. The said decision of the learned single judge was upheld by the Division Bench and the same is reported in ILR [1965] 2 Punj 1. The Supreme Court in the case of Madhaorao Phalke State of Madhya Pradesh, AIR 1961 SC 298, gives more or less the same view. Again, in the case of Deokinandan Prasad v. State of Bihar AIR 1971 SC 1409, it was held that the right to receive pension is property under art. 31(1) and by a mere executive order, the State had no power to withhold the same. So far as these cases are concerned, in my opinion, these cases establish the proposition that a claim in the nature of pension is property and denial of right of such property by an executive act without the sanction of any legislation or statute will be deprivation of property without the authority of law. Reliance was also placed on the observations in the decision of the Supreme Court in the case of State of Madhya Pradesh v. Ranojirao Shinde, AIR 1968 SC 1053. Then the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djusted it against the other liability alleging that the payment had been wrongly made. It was held that such adjustment would offend the provision of art. 31(1) of the Constitution and affect the company's legal right to property and the application for appropriate writ was maintainable. As I have mentioned before, it is necessary to precisely state the issue involved in this case. In case of illegal taxation the question of acting contrary to the provision of the Constitution would arise because art. 265 of the Constitution provides that no tax would be levied or collected except by the authority of law. Similarly, in the case of privy purse, there is a constitutional guarantee, as was found by the Supreme Court. Other cases of property, be it in the form of cash grant or in the form of pension, cannot be affected or interfered with except by provision of a particular statute or except by the constitutional mandate. I am concerned here with a right which the petitioner claims under the statute. Interest is not a constitutional right. Right to interest is a right flowing from s. 214 of the I.T. Act, 1961. Right to get interest accrues to the petitioner only by virtue of s. 214 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the statute was intra vires, the action was without jurisdiction or the principles of natural justice were violated, a right to move the Supreme Court under art. 32 for enforcement of right existed. Errors of law or fact committed in the exercise of jurisdiction founded on a valid law do not entitle a person to have them corrected by way of petitions under art. 32 of the Constitution. Where there is a process of quasi-judicial determination involved and in that determination, if there is mis-application of the section then only an error within the jurisdiction occurs and deprivation resulting from such an error within the jurisdiction, in my opinion, in respect of a right not flowing from the Constitution but otherwise, would not be deprivation of property without the authority of law. Learned advocate for the petitioner further submitted that if a question of fundamental right was involved, then the further questions whether there was any alternative remedy or it had been exhausted by the petitioner or resort had been made to such alternative remedy were no longer relevant under the amended provisions of art. 226 of the Constitution and for this he drew support from the observat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court had further observed that in attempting to bypass the provisions of the I.T. Act by inviting the High Court to decide the questions which were primarily within the jurisdiction of the revenue authorities, the party approaching the court had often to ask the court to make assumptions of facts which remained to be investigated. Therefore, where on undisputed facts it could have been assumed that the order in question was illegal and there was no question of investigation of facts, the court had the jurisdiction and very often did exercise its jurisdiction under art. 226 of the Constitution before the amendment of the said article. More or less the same view was reiterated by the Supreme Court in the case of Champalal Binani v. CIT [1970] 76 ITR 692 (SC). Reliance may also be placed on Hirday Narain v. ITO [1970] 78 ITR 26 (SC). But after the amendment it is no longer in the discretion of the court where other remedy for redress of the injury has been provided because no petition under art. 226 for such redress can be entertained in view of cl. (3) of art. 226 of the Constitution. The question, therefore, in the instant case, is, whether there is any other remedy for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 [FB]. That was, of course, a case dealing with certain trade notices and the Full Bench observed that "any other remedy" must be remedy for the redress of the injury for which the writ jurisdiction was conferred and, therefore, it must be equally adequate or efficacious so that qualitatively and quantitatively the same relief could be given for redress of the injury of the party concerned. Therefore, the adequacy and efficaciousness of the remedy were implicit if the remedy was to be for redressing the injury as effectively as could be done in the writ petition. This question was also considered by the Full Bench of the Andhra Pradesh High Court in the case of Government of India v. National Tobacco Co. of India Ltd., AIR 1977 AP 250 [FB]. There, of course, the court held that the Industrial Disputes Act had provided a clear remedy for adjudication of the disputes by the labour courts and the industrial tribunals once a dispute was raised and the same has been referred to them. The court, however, was of the view that the "other remedy" contained in cl. (3) of art. 226 of the Constitution must be capable of affording such redress as was postulated under sub-cls. (b) and (c) of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars. If this application was entertainable then of course the question of delay might have been a factor to be taken into consideration in granting relief under art. 226 of the Constitution and then the question might have arisen whether having entertained this application it would be proper to refuse such an application on the ground of delay. It was further submitted that there was some explanation for the delay in the sense that in view of the previous decisions of the Bombay High Court and the Allahabad High Court and there being no decision of the Calcutta High Court exactly on the point, the petitioner had reason not to pursue further until the decision in Chloride India's case [1977] 106 ITR 38, of this court, was published. As I said before, this question would only arise in exercising the court's discretion in granting relief had this application been entertainable. But in the view I have taken before, under cl. (3) of art. 226 of the Constitution, this application is not maintainable and, therefore, must fail. The rule nisi is accordingly discharged. In the facts and circumstances of this case, there will be no order as to costs. Interim orders, if any, are vacated. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
