M. r. Shareef v. The Hon'bie

On the 20th September, 1954, the -present applica tion was preferredunder the provisions of article 32 of thq Constitution .. -It has perhaps been made under the. impression that the decision of this Court in Siiraj Mal ltlohta v. A. V. Visvanatha Sastri and Another(') has application to the facts and circumstances of this case as well and that relief can be obtained against the assessment orders which have become final, by taking proceedings under article 32 of the Constitution. In· the petition it was alleged that the attachment and sale of the petitioner's properties was illegal and violates the petitioner's fundamental rights under articles 31(1) and 19(l)(f) of the Constitution. It was al~o alleged (t) A.LR. 1954 s.c. s~s .. I ! , - • , ' 772 • · SUPREME COURT REPORTS (1955] -- z954 that the proceedings before the Income-tax Investiga· . tion Commission after the coming into force of the Con· HL.,,manappa stitution were illegal as being in contravention of articles ••u':':_" 1~PP• 14 and 20(3) of the Constitution and that in view of the union of India-decision of this Court inSuraj Mal lrfohta v. A. V. and Another • V isvanatha Sastri and Another (supra) proceedings under the Taxation on Income (Investigation Commission) Afakaj•n<J_, J._ Act; 1947 were discriminatory and that the references made by the Central Government under section5(1) are not based on a proper classification. It was prayed that this Court may be pleased to issue a writ in the nature of mandamus and/or certiorari or such other directions as may be appropriate to quash th_e assessment orders made in pursuance of the_ order of the-Central Govern ment under section 8(2) of the Taxation on Income (Investigation Commission) Act, 1947, and to restrain the respondents from attaching and selling or interfering in any manner with the properties of the petitioner .. From the facts stated above it is plain that the proceedings taken under the impugned Act XXX of 1947 concluded so far as the Investigation Commission is concerned in September, 1952, more than two years before this petition was presented in this Court. The assessment orders under the Income-tax Act itself were made against the petitioner in November, 1953. In these circumstances we are of the opinion that he is entitled to no relief under the provisions of article 32 of the Constitution. It was held by this Court in Ramjilal v. Income-tax Officer, Mohindergarh (') that as there is a special provision in article 265 of the Constitutbn that no tax shall be levied or collected except by authoi; ity of-Jaw, clause (1) of article 31 must therefore be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, and inasmuch as the right conferred by article 265 is . not a right conferred by Part III of the Constitution, it could not be enforced under article 32. In view of this decision it has to be held that the petition under . article 32 is not maintainable in the situation that has arisen and that even otherwise in the peculiar circum stances th_at have arisen it would not be just and proper (1) [r9,;1J s.c'.R. 127. 1954 Laxmanappa HanurMntaaPfia v. Union •f India Mahajan C. ]. 1954 Oclo6w 2 1. S.C.R. SUPREME COURT REPORTS 773 to direct the issue of any of the writs the issue of which this position 1s discretionary with this Court. When was put to Mr. Sen, petitioner, he very fairly, and, in our opm10n, rightly conceded that it was not possible for him to com~at this position. learned counsel For the reasons given above this petition is bound to fail and it is accordingly dismissed with costs. Petition dismissed. DEWAN BAHADUR SETH GOPAL DAS MOHTA "· THE UNION OF INDIA AND ANOTHER. [MEHR CHAND MAHAJAN C.J., s. R. DAS, GH?LAM HASAN, BHAGWATI and VENKATARAMA AYYAR JJ.] Co11stitution of India, Art. 32-Taxation on Income (Investi gation Commission) Act, 1947 (XXX of 1947) s. 5(1)-lnvestigation and Report by Commission in respect of profits made by assessee and tax payable by him-Mutual. settlement assessee and Government-Petition under Art. 32-Whether competent. between J 1 ·~ - .• investigation the petitioner's The petitioner, a business man, was alleged investigation and report. During application to have made huge profits during the years of War and the Central Government acting under s. 5( 1) of the Taxation on Income (Investigation Com mission) Act, 1947 (XXX of 1947) referred his case to the Investi gation Commission for pendency of settlement under the provisions of s. 8-A of Act XXX of 1947 was ~ accepted by the Central Government and in pursuance thereof the tax was made payable by instalments and the claim for evaded income-tax was thus finally settled by mutual agreement. When the instalments in the sum of Rs. 4 lacs odd still remained due the petitioner preferred the. present petition under Art. 32 of Constitution alleging that the entire proce~dings under Act XXX of 1947, were illegal, ultra vires, void and unconstitutional, that the Income-tax authorities were not competent to recover the amount due from him and that ss. 5, 6, 7 and 8 of the Act were ultra vires as they infringed Arts. 14, 19(1) (£) and 31 of the Constitution. • Held, that the petition under Art. 32 was not competent as whatever had already been paid or whatever was still recoverable the petitioner was being recovered on the basis of