Back
HIGH COURT OF CALCUTTA
Harries, Banerjee
UNION OF INDIA - Appellant
Versus
ELBRIDGE WATSON - Respondent
A. F. O. O. 30 Of 1951
Decided On : JULY 23, 1951
INCOME TAX - WRIT OF MANDAMUS - DISCRETION OF COURT - CIRCUMSTANCES TO BE CONSIDERED - RIGHT TO BE ENFORCED - DEMAND AND REFUSAL - ADMINISTRATIVE ACT - SECTION 46 (5A) OF THE INCOME TAX ACT.
Fact of the Case:
The petitioner, an American citizen, was assessed to income tax and super tax for the accounting year 1946-47. He made certain payments, but a balance demand remained. The Income Tax Officer issued a notice under Section 46 (5a) of the Income Tax Act, effectively stopping payment by the petitioner's company to him. The petitioner applied to the Certificate Officer for permission to pay the amount due by monthly installments. The Certificate Officer, without hearing the Income Tax Officer, granted the petitioner an installment of Rs. 5000/- per month. The Income Tax Officer challenged this order by filing a petition for a writ of mandamus.
Finding of the Court:
The Court held that the Income Tax Officer's notice under Section 46 (5a) was an administrative act and not a judicial or quasi-judicial act. Therefore, the proper writ to challenge the notice would be a writ of mandamus. However, the Court found that the petitioner had not made a proper demand for the right he sought to enforce, namely, the withdrawal of the notice under Section 46 (5a). The Court also found that the Certificate Officer had not given the Income Tax Officer an opportunity to be heard before granting the installment order. The Court held that it would not be consistent with justice to issue a writ of mandamus in these circumstances.
Issues: 1. Whether the Income Tax Officer's notice under Section 46 (5a) was a judicial or quasi-judicial act. 2. Whether the petitioner had made a proper demand for the right he sought to enforce. 3. Whether the Certificate Officer had given the Income Tax Officer an opportunity to be heard before granting the installment order.
Ratio Decidendi: 1. The Court held that the Income Tax Officer's notice under Section 46 (5a) was an administrative act and not a judicial or quasi-judicial act. The Court relied on the principles laid down in Province of Bombay v. Khushaldas S. Advani, 1950 SCR 621, to distinguish between judicial, quasi-judicial, and administrative acts. 2. The Court held that the petitioner had not made a proper demand for the right he sought to enforce. The Court noted that the petitioner had only asked the Income Tax Officer to withdraw the notice under Section 46 (5a), and not to accept payment by installment. 3. The Court held that the Certificate Officer had not given the Income Tax Officer an opportunity to be heard before granting the installment order. The Court found that the Certificate Officer had ignored the Income Tax Officer's objections to the installment order and had not given him a chance to make his case.
Final Decision: The Court set aside the order of the learned Judge and allowed the appeal with costs.
( 1 ) THIS is an appeal from an order made by S. R. Das Gupta J. , directing that the appellant Income-Tax Officer do revise an order which was made by him on March 18, 1949 and make it consistent with the order for instalments which was made by the Certificate Officer, 24-Parganas, on May 25, 1950.
( 2 ) IN the petition the petitioner who is the respondent before us asked for: (a) Issue of a writ of mandamus or a writ of a like nature; of an order directing the Income-tax Officer to show cause why the order complained of and dated the 18th March, 1949, should not be set aside; (b) quashing the said order etc.
( 3 ) THE Income-Tax Officer alone was party to the petition.
( 4 ) A Rule Nisi was granted on this petition directing the Income-Tax Officer to show cause why the order made by him under Section 46 (5a) of the Indian Income Tax Act and dated 18th March 1949 should not be set aside and/ or quashed.
( 5 ) THIS Rule was served also on the Appellant Union of India and thus it was made a party to these proceedings.
( 6 ) DR. Radha Binode Pal who appeared on behalf of the petitioner before the learned Judge modified the prayers of the petition bv asking the Court to direct the Income-Tax Officer either to withdraw or amend his notice so as to make it consistent with the order for payment by instalments of the amount which had been due. The notice here refers to the demand notice issued by the Income-Tax Officer to the respondent for payment of the tax due.
( 7 ) ARTICLE 226 of the Constitution gives power to the High Courts to issue to any person or authority, including in appropriate cases any Government, within the territories in relation to which they exercise jurisdiction directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiqrari or any of them, for the enforcement of the fundamental rights assured to the citizens of India by the Constitution and for any other purpose.
( 8 ) PRIOR to the Constitution the power which the High Courts exercised of issuing High Prerogative Writs as these Writs are called, was what was inherited by them from the old Supreme Courts which they superseded and was limited to the limits of their Ordinary Original Civil Jurisdiction. They had no jurisdiction to issue writs to persons who did not reside within these limits or so as to operate on properties situated outside those limits. This defect was pointed out in several cases and has been removed by Article 226 of the Constitution.
( 9 ) I must note here that before the Constitution the High Courts here could not issue any writ of mandamus after the Specific Relief Act of 1877 came into force. But the High Courts of Calcutta, Madras, Bombay and Rangoon could make orders under Section 45 of that Act for the enforcement of public duties. But in dealing with an application under Section 45 of the Specific Relief Act, the principles applicable to a writ of mandamus were generally followed. "the proceedings taken under Section 45, Specific Relief Act, are obviously analogous to "proceedings" for the obtaining of the English writ of mandamus. . . . . . . . . The writ of mandamus has been abolished in this country and care must be taken to see that the analogy of the English cases does not lead one outside the words of the Indian Statute. "per Coutts Trotter, 3. in 'g. A. NATESAN', in the matter of 40 Mad 125 at p. 136 ). There are cases of other High Courts which have made similar observations.
( 10 ) I do not think that Section 45 has been re pealed by Article 226 of the Constitution. That Article has enlarged the jurisdiction of these Courts for the issue of the writs mentioned in that Article. It should be noted that our Constitution has adopted the nomenclature of the English writs and I apprehend the English Law relating to these writs must govern the issue of the writs herein so far as they are not opposed to our Constitution.
( 11 ) IT is necessary to be
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
