Judgement

HEGDE, J. : The petitioner on his own showing is a tax dodger. His true grievance appears to be that his tax evasion has been detected and that he is made to disgorge the unlawful gain made by him. He says that the order of rectification, which is the subject-matter of attack in these proceedings, was made without the authority of law. Assuming, without deciding, that his complaint is true, the first question for decision is whether on the facts and in the circumstances of the case, we would be justified in exercising our extra-ordinary powers under Article 226 of the Constitution.

2. The material facts are as follows : The petitioner is a coffee planter in Chickmagalur District. He owns coffee estates both in Chickmagalur as well as in Hassan District. The Mysore State Legislature enacted the Mysore Agricultural Income-tax Act, 1955 (Mysore Act No. 4 of 1955) to be referred to as the "Act" hereinafter, providing for the levy 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 :

"(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.* * *"

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-sections (1) and (5) of section 64 of the "act". section 64(1) says :

"Any person who derives agricultural income from land not exceeding five thousand acres in extent of the first class of land or an extent equivalent thereto consisting of any one or more of the classes of land specified in Part II of the Schedule, may apply to the prescribed officer for permission to compound the agricultural income-tax payable by him and to pay in lieu thereof a lump sum at the rates specified in Part III of the Schedule in respect of the first class of land."

Sub-section (5) of Section 64 reads :

"The permission granted under sub-section (3) shall be in force for the year for which it is granted; and in respect of that period the provisions of the Act regarding the submission of returns, accounts or other documents, the assessment to agricultural income-tax or any other matter incidental thereto shall not apply in relation to the grantee."

3. The petitioner and his son (K. N. Setharama Setty) submitted two applications on 29-11-1955 to the Agricultural Income-tax Officer, Chickmagalur. The application of the petitioner set out only some of the lands owned by him and situate in Chickmagalur District wherein commercial crops were grown (which will be hereinafter referred to as the "agricultural lands"). It is shown that the description of the properties given therein was not exhaustive of those owned by the petitioner and situate in Chickmagalur District. At the same time, his son (K. R. Seetharama Setty) filed another application before the same Officer, asserting that the lands described in his petition and situate in Chickmagalur District belonged to him.

The petitioner presented another application, dated 29-11-1955 to the Ag. I.T.O., Hassan, showing therein his "agricultural lands" situate in Hassan District. In the petition filed by the petitioner before the Ag. I. T.O., Chickmagalur, no mention was made of the fact that he (petitioner) had any "agricultural lands" in any District of the Mysore State, other than in Chickmagalur District. Similarly, in the petition filed before the Ag. I.T.O., at Hassan, no mention was made of the fact that he (petitioner) had "agricultural lands" in Chickmagalur District.

The Ag. I.T.O., 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 Ag. I.T.O., Chickmagalur, was and is not challenged. The petition filed before the Ag. I.T.O., at Hassan, was forwarded to the Ag. I. T. O., at Saklespur, where the properties mentioned in the petition are situate. The Ag. I.T.O., Saklespur, passed a "provisional" order of assessment.

Sometime after the petitioner was assessed to agricultural income-tax, as mentioned above, the Ag. I.T.O. Chickmagalur, came to know that the petitioner had not placed the true facts before him; he learnt that the petitioner had "agricultural lands" in Hassan District as well. Hence, he enquired into the matter and re-assessed the petitioner, purporting to act under Section 36(1) of the "Act" which says;

"The authority which passed an order on appeal or revision may at any time within three years from the date of such order passed by him on appeal or in revision and the Agricultural Income-tax Officer may at any time within three years from the date of any assessment or refund order passed by him, of his own motion, rectify any mistake apparent from the record of the appeal, revision, assessment or refund, as the case may be, and shall, within the like period, rectify any such mistake which has been brought to his notice by an assessee;"

It is the validity of this order of rectification that is being primarily assailed in these proceedings.

4. Sri K. Srinivasan, the learned Counsel for the petitioner, raised three questions of law before us. They are : (1) No rectification under Section 36 of the "Act" is available in cases where the tax liability is compounded under Section 64(1); (2) the mistake said to have been rectified cannot be said to have been apparent on the records; the mistake alleged to have been detected by the Ag. I.T.O. Chickmagalur was detected only as a result of a fresh enquiry; and (3) the rectification in question was made after the prescribed period.

5. We have not thought it necessary to go into these contentions, as in our opinion, the petitioners conduct disentitles him to any relief at our hands. The petitioner appears to have deliberately manoeuvred to substantially evade his tax liability. He is a person of status. He can be expected to know that agricultural income tax had to be paid on the total agricultural income of an assessee derived from "agricultural lands" situate in the State. Under the "Act" a graded scale is prescribed for the purpose of compounding; the greater the extent of the land owned, the higher was the rate. Admittedly, the petitioners total tax liability for the assessment year 1956-57 was Rs. 10,880/-. But, he had managed to get it fixed up at Rs. 6,615-12-0 and that by suppression of true facts. It is true that there were lapses on the part of the officials of the Agricultural Income-tax Department. They clearly failed in their duty. But that in 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 that the order of rectification was made without the authority of law.

6. 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 Ag. I.T.O., Chickmagalur, dated 20-7-1960 (rectification order) by issuing a Writ of Certiorari. Secondly, he has prayed that this Court

"may be pleased to issue a Writ of Certiorari or a direction in the nature of a Writ of Certiorari quashing the notice of demand dated 20-7-1960 issued by the Agricultural Income-tax Officer, Chickmagalur."

The second relief prayed for is superfluous. Further, any steps taken to collect the assessment levied cannot be considered as judicial acts and the same are not amenable to the certiorari jurisdiction of this Court.

7. Sri K. Srinivasan, the learned Counsel for the petitioner, submitted that it would be more appropriate to issue a Writ of Prohibition, prohibiting the Ag. I.T.O. from taking steps in the matter of collection of the tax levied. We do not think that this submission is correct. A Writ of Prohibition again is a judicial Writ. It is issued only on well accepted grounds. It is well recognised that no petitioner is entitled to get any relief under Article 226, as of right. It is a discretionary relief, and this Court will exercise its jurisdiction only in appropriate cases. As noticed earlier, in this case the petitioners conduct is open to serious criticism. He has tried to dodge the payment of tax rightly due from him. He is guilty of suppression of facts. Therefore, prima facie this Court would be gultifying (stultifying?) itself if it exercises its extraordinary jurisdiction in his favour, unless there are some legal compulsions to do so. The majesty of the law has to be respected and it can only be respected if it is not utilised for unworthy causes.

8. It is contended by Sri D. M. Chandrasekhar, the learned Counsel for the Revenue that we would not be right in granting any relief to the petitioner, even if we come to the conclusion that the order of rectification was made without the authority of law. In this connection our attention was invited by him to the decision of the Supreme Court in Sangram Singh v. 1. Election Tribunal, Kotah, (S) AIR 1955 SC 425. In paragraph 14 of that judgment, Bose, J. who spoke for the Bench observed

"That, however, is not to say that the jurisdiction will be exercised whenever there is an error of Jaw. The High Courts do not and should not act as Courts of appeal under Art. 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into Courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for though no legislature can impose limitation 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."

9. The next case read to us is the one reported in AIR 1957 Cal 1, In the matter of Jagannath Hanumanbux. 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 Art. 226 before the High Court of Calcutta. Sinha, J. held that the recovery proceedings in question are 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.

10. Next reference was made to the decision in Pooran Singh v. Additional Commissioner, Agra, AIR 1957 All 276. Therein their Lordships laid down that the powers conferred by Article 226 of the Constitution on the High Courts are certainly very wide and confer on them a discretion of a most extensive character : that discretion however must necessarily be exercised in accordance with judicial considerations and well established principles; the High Court will certainly not hesitate in issuing an appropriate Writ, Order or direction whenever necessary, but no person can claim to be entitled to such an order or writ as matter of course, without satisfying the High Court that the case is suitable one for the issue of such an order of writ; thus the mere fact that an order is without jurisdiction or that there is an error apparent on the face of the record is not sufficient to justify the issue of a Writ; in addition to that it must be established that the order has resulted in manifest injustice; it is therefore open to the High Court to refuse to issue a writ if it feels that the relief prayed for is issued it will clearly effectuate an injustice in the case.

11. Lastly reference may be made to a passage in the decision in A.M Allison & H.P Brigg v. B.L Sen & Others, (S) AIR 1957 SC 227 at p. 231. This is what Bhagwati, J. observed in that case :

"There are moreover special reasons why we should not interfere with the orders of the Deputy Commissioner, Sibasagar, in these appeals. The matters do not come to us by way of appeal directly front the orders of the Deputy Commissioner, Sibsagar. They were the subject, in the first instance, of proceedings under Art. 226 of the Constitution in the High Court of Assam Proceedings by way of certiorari are "not of course". (Vide Halsburys Laws of England, Hailsham Edition, Vol 9 paras 1480 and 1481, pp. 877-878). The High Court of Assam had the power to refuse the writs if it was satisfied that there was no failure of justice, and in these appeals which are directed against the orders of the High Court in applications under Art. 226, we could refuse to interfere unless we are satisfied that the justice of the case requires it. But we are not so satisfied. We are of opinion that, having regard to the merits which have been concurrently found in favour of the respondents both by the Deputy Commissioner, Sibsagar, and the High Court, we should decline to interfere."

The learned Counsel for the petitioner urged that the levy made on his client as per the order dated 20-7-1960 of the Ag. I.T.O., Chickmagalur, is an illegal levy and therefore, his clients fundamental right guaranteed under Art. 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 petitioners contention is that he has a right to retain his unlawful gain and that right is a fundamental right. We do not think that either Clause (f) or (g) of Art. 19(1) of the Constitution can be availed of to support such a contention.

12. Art. 19(1)(f) and (g) of the Constitution guarantee the property rights as well as the right to practise any profession, or to carry on any occupation, trade or business by a citizen. None of these rights are infringed in the present case.

13. Sri Srinivasan, the learned Counsel for the petitioner, contended that every illegal levy made on a citizen is an infringement of his fundamental right; the impugned rectification resulted in an illegal levy and the same is a threat to the property rights of the petitioner. To support his contention, the learned Counsel for the Assessee, cited certain decisions.

We shall presently examine those decisions. But before doing so, it is necessary to remember that the word "assessment" is an expression of wide import and it involves three different aspects, i.e., (1) charge, (2) quantification, and (3) collection. In all taxation measures, the tax liability is imposed on the assessee by the relevant charging sections. The liability of an assessee arises as soon as the assessment year commences. What the taxing authorities are required to do is to merely quantify that liability and take steps to collect the same. Viewed that way, the petitioners liability to pay the agricultural income-tax due, was imposed on him by means of sections 3 and 4 of the "Act". Other steps taken merely relate to quantification and collection. Hence, on the facts of this case it cannot be properly said that there was any illegal levy. All that can be said is that the quantification made by the Ag. I.T.O. was without the authority of law. But, that is not the same thing as saying that there was an illegal levy. We may now proceed to consider the cases cited on behalf of the assessee.

14. The first case read to us is the decision in Himmatlal Harilal v. State of Madhya Pradesh. 1954-5 STC 115 : (AIR 1954 SC 403). In that case a threat was held out to the assessee to collect tax from him on the basis of a statute which had been declared ultra vires. The assessee sought relief under Art. 226 of the Constitution. The matter finally went up to the Supreme Court. This is what the Supreme Court observed in that connection :

"In Mohd. Yasin v. Town Area Committee, Jalalabad, 1952 SCR 572 : (AIR 1952 SC 115) it was held by this Court that a license fee on a business not only takes away the property of the licensee but also operates as a restriction on his fundamental right to carry on his business and therefore if the imposition of a license fee is without authority of law it can be challenged by way of an application under Art. 32, a fortiori also under Art. 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 realise it from the appellant is a sufficient infringement of his fundamental right under Art. 19(1)(g) and it was clearly entitled to relief under Art. 226 of the Constitution. The contention that because a remedy under the impugned Act was available to the appellant, it was disentitled to relief under Art. 226 stands negatived by the decision of this Court in State of Bombay v. United Motors (India) Ltd., 1953 SCR 1069 : ( AIR 1953 SC 252), above referred to. There it was held that the principle that a Court will not issue a prerogative writ when an adequate alternative remedy was available could not apply where a party came to the Court with an allegation that his fundamental right had been infringed and sought relief under Art. 226. Moreover the remedy provided by the Act is of an onerous and burdensome character. Before the appellant can avail of it, he has to deposit the whole amount of the tax. Such a provision can hardly be described as an adequate alternative remedy."

In that case, quite clearly there was no legal liability on the part of the assessee to pay the tax, demanded as the provision imposing tax had been held to be ultra vires. Hence any threat to collect a tax purporting to be under some law, which in the eye of law is non-existent cannot but be an illegal levy. Therefore, the ratio of that decision is inapplicable to the facts of the present case.

15. The next decision to which reference was made is the one in Kailash Nath v. State of U.P., (S) AIR 1957 SC 790. The principle that came up for consideration in that case is the very principle the Supreme Court had to consider in Himmatlals case, 1954-5 STC 115 : (AIR 1954 SC 403). In that case also the Court on a proper, interpretation of the relevant notification came to the conclusion that there was no liability to pay the tax demanded.

16. We shall next consider the decision in Calcutta Discount Co., Ltd. v. Income-tax Officer, 1961-41 ITR 191 : (AIR 1961 SC 372). The passage read to us from that decision is found at p. 208 of the report (ITR) : (at p. 380 of AIR). This is how that passage reads :

"In the present case the company contends that the conditions precedent for the assumption of jurisdiction under Section 34 (of the Income-tax Act) were not satisfied and came to the Court at the earliest opportunity. There is nothing in its conduct which would justify the refusal of proper relief under Art. 226. When the Constitution confers on the High Courts the power to give relief it becomes the duty of the courts to give such relief in fit cases and the Courts would be failing to perform their duty if relief is refused without adequate reasons. In the present case we can find no reason for which relief should be refused."

17. This passage instead of supporting the case of the petitioner, to our mind, appears to support the contention advanced on behalf of the Revenue. The passage in question makes it absolutely clear that the reliefs to be granted under Art. 226 are discretionary 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.

18. Next reference was made to the decision in S. Santhosha Nadar v. First Appl. Income-tax Officer, Tuticorin, 1961-42 ITR 715. P. Rajagopalan, O.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 petitioner under such an order of assessment passed wholly without jurisdiction or in excess of the jurisdiction vested in the Income-tax Officer, the issue of a writ of prohibition would not be a matter of discretion and in that respect it differs from the discretionary relief of a writ of certiorari. In the circumstances of this case we are of the opinion that we should not refuse to investigate the question whether the assessments for all or any of the three years in question were invalid."

The statement of law noticed above, if we may say so with respect appears to be somewhat broad. But, it is unnecessary for our present purpose to dilate upon that question. The only appropriate relief that could be claimed on the facts of this case is a writ of Certiorari. The steps taken to collect the tax imposed are the necessary consequences of the order of rectification. This is not a case where this Court is put to the necessity of not touching the order but paralysing the limb that executes it. If we do not strike down the order of rectification, it is, because that we do not choose to do so. Therefore there is no need to have recourse to indirect methods. We hesitate to subscribe to the view that any of the reliefs under Art. 226 is "of course". In our view all of them are discretionary reliefs. There is no justification to introduce into the texture of our Contitution limitations which are products of history in other Countries.

19. The last decision read to us is the decision in Rajeshwar Pershad v. Income-tax Officer, 1959-36 ITR 492. In that case, the Punjab High Court came to the conclusion that on the facts of that case it ought to exercise its jurisdiction under Art. 226. After having come to that conclusion the Court observed :

"Even otherwise the petitioner is under a threat of being subjected to the penal and other consequences provided by the statute if he does not satisfy the aforesaid demand. I do not consider that in these circumstances the present petition can be dismissed simply on the ground that the impugned order was made in the year 1955 and the petition was filed much later. In 1954-5 STC 115 : ( AIR 1954 SC 403) it was observed that the imposition of sales tax on the appellant in that case was without authority of law, and that being so a threat by the State by using the coercive machinery of the impugned Act to realise it from the appellant was a sufficient infringement of his fundamental right under Art. 19(1)(g) and the appellant was clearly entitled to relief under Article 226 of the Constitution."

The passage above quoted is clearly obiter. That apart, we do not think that the passage properly brings out the ratio of the decision in Himmatlals case, 1954-5 STC 115 : (AIR 1954 SC 403). As noted earlier, in Himmatlals case, 1954-5 STC 115 : (AIR 1954 SC 403), the Court was called upon to deal with a case where there was no tax liability. It was not a case where there was a liability but the order quantifying it or the steps taken to collect the same were invalid.

20. For the reasons mentioned above, we are satisfied that we would not be justified in granting any relief to the petitioner in this case. That being so, we have not thought it necessary to go into the merits of his contentions.

21. In the result, this petition fails and the same is dismissed with costs. Advocates fee Rs. 100/-.

Petition dismissed.