PETITIONER:
LAXMANAPPA HANUMANTAPPA JAMKHANDI
Vs.
RESPONDENT:
THE UNION OF INDIA AND ANOTHER.
DATE OF JUDGMENT:
21/10/1954
BENCH:
MAHAJAN, MEHAR CHAND (CJ)
BENCH:
MAHAJAN, MEHAR CHAND (CJ)
DAS, SUDHI RANJAN
HASAN, GHULAM
BHAGWATI, NATWARLAL H.
AIYYAR, T.L. VENKATARAMA
CITATION:
1955 AIR 3
CITATOR INFO :
F 1957 SC 397 (43)
R 1959 SC 149 (16,30,51,52)
R 1959 SC 395 (28)
RF 1961 SC 65 (5,37)
HO 1961 SC1457 (6)
RF 1962 SC1006 (34,72,81)
O 1962 SC1563 (15)
R 1962 SC1621 (122,165)
R 1966 SC 619 (7)
R 1970 SC 470 (33)
RF 1971 SC 870 (10)
ACT:
Constitution of India, Arts. 31(1), 32, 265-Deprivation
of property-Otherwise than by imposition or collection of
tax-Right conferred by Art. 265- Whether can be enforced by
Art. 32.
HEADNOTE:
Held, that as there is a special provision in Art. 265 of
the Constitution that no tax shall be levied or collected
except by authority of law, clause (1) of Art. 31 must be
regarded as concerned with deprivation of property otherwise
than by the imposition or collection of tax and as the right
conferred by Art. 265 is not a fundamental right conferred
by Part III of the Constitution, it cannot be enforced under
Art. 32.
Ramjilal v. Income-tax Officer, Mohindergarh ([1951]
S.C.R. 127) followed.
Suraj Mal Mohta and Co. v. A. V. Visvanatha Sastri
(A.i.R. 1954 S.C. 545) referred to.
JUDGMENT:
ORIGINAL JURISDICTION: Petition No. 492 of 1954.
Petition under article 32 of the Constitution for the
enforcement of Fundamental Rights.
B. Sen, I. N. Shroff and B. P. Singh for the petitioner.
M. C. Setalvad, Attorney-General for India, and C.
K. Daphtary, Solicitor-General for India (G. N. Joshi
770
P.A. Mehta and P. G. Gokhale, with them) for the
respondents.
1954. October 21. The Judgment of the Court was
delivered by
MEHR CHAND MAHAJAN C.J.-This is a petition under article
32 of the Constitution of India for the enforcement of
fundamental rights under articles 31(1) and 19(1)(f) of the
Constitution and for the issue of writs in the nature of
mandamus and/or certiorari and for suitable directions
restraining the respondents from interfering with the
petitioner’s properties in violation of his fundamental
rights.
The petition arises in these circumstances. The
petitioner, along with his brothers, used to carry on the
business of toddy and liquor vendors. In addition to this,
one of the brothers used to run a bus service and dealt in
cotton and money-lending also. All the brothers owned
extensive properties, both agricultural and non-
agricultural. Though prior to the assessment year 1926-27
all the brothers were assessed to income-tax as a Hindu
undivided family, since then up to the year 1946 they were
assessed separately on account of a partition alleged to
have been made between them. In December, 1946, the Income-
tax Officer commenced proceedings against them under section
34 on the ground that the case of partition set up by them
was not correct and as a matter of fact there had been no
partition between them and they were carrying on business
jointly. As a result of these proceedings an assessment
under section 34 was made on the four brothers jointly,
treating them as an association of persons, for the year
1942-43. Similar assessment proceedings were taken against
them in respect of the years 1940-41, 1941-42 and 1943-44.
In December, 1947, the Central Government, under the
bona fide belief that the petitioner’s brothers had made
huge profits during the war and had evaded tax, made five
references to the Income-tax Investigation Commission under
section 5(1) of the Taxation on Income (Investigation
Commission) Act, 1947. Reference No. 175 concerned all the
brothers as an association of persons while the other four
references related
771
to the brothers individually. As a result of the pro-
ceedings before the Investigation Commission, the Commission
made a report to the Central Government on the 26th of
September, 1952, estimating the amount of escaped income at
Rs. 16,79,203 between the year,% 1940-41 and 1948-49. In
pursuance of this report the Central Government passed an
order under section 8(2) of the Taxation on Income
(Investigation Commission) Act directing that the assessment
proceedings be taken under the Indian Income-tax Act and
Excess Profits Tax Act, 1940, as well as under the Business
Profits Tax Act, 1947, against Messrs Jamkhandi Bros. as an
association of persons with a view to assess or reassess the
income that had escaped assessment according to the report
of the Investigation Commission. In accordance with these
orders the Income-tax Officer commenced proceedings against
Messrs Jamkhandi Bros. as an association of persons. On the
30th November, 1953, various assessment orders were passed
by the Income-tax Officer assessing the petitioner under the
Income-tax Act and the Excess Profits Tax Act. Proceedings
were then taken against the petitioner for recovery of the
tax assessed by the Income-tax Officer and in those
proceedings the properties of the petitioner in the District
of Belgaum were attached for payment of the dues and one of
his properties comprising of about 12 plots of land was sold
by public auction under the provisions of the Bombay Land
Revenue Code.
On the 20th September, 1954, the present application was
preferred under the provisions of article 32 of the
Constitution. It has perhaps been made under the impression
that the decision of this Court in Suraj Mal Mohta v. A. V.
Visvanatha Sastri and Another (1) 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(1)(f) of the Constitution. It
was also alleged
(1) A.I.R. 1954 S.C. 545.
772
that the proceedings before the Income-tax Investigation
Commission after the coming into force of the Constitution
were illegal as being in contravention of articles 14 and
20(3) of the Constitution and that in view of the decision
of this Court in Suraj Mal Mohta v. A. V. Visvanatha Sastri
and Another (supra) proceedings under the Taxation on Income
(Investigation Commission) Act, 1947 were discriminatory and
that the references made by the Central Government under
section 5(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 the 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 a 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 (1) that as there is a special provision in
article 265 of the Constitution that no tax shall be levied
or collected except by authority of law, 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 that have arisen it would not be just and proper
(1) [1951] S.C.R. I27
773
to direct the issue of any of the writs the issue of which
is discretionary with this Court. When this position was
put to Mr. Sen, the learned counsel for the petitioner, he
very fairly, and, in our opinion, rightly conceded that it
was not possible for him to combat this position.
For the reasons given above this petition is bound to
fail and it is accordingly dismissed with costs.
Petition dismissed