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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.

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  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

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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

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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