AIYESHA BIBI Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE petitioner was assessed to income-tax foi the year 1951-52. THE petitioner was not permitted to challenge the validity of that asssessment in these proceedings. THE assessed tax was in arrears. On the issue of a certificate by the Income-tax Officer under Section 46(2) of the Income-tax Act, the Collector of Madras issued a notice of demand to the assessee on 17th July, 1954, which purported to be under the provisions of the Revenue Recovery Act, Act II of 1864. THE assessee is a resident of Vepery in the City of Madras. THE assessee challenged the validity of the notice of demand and the further proceedings for recovery of the income-tax taken thereunder and she filed this application under Article 226 of the Constitution for the issue of a Writ of prohibition.

(2.) THE two grounds on which the jurisdiction of the Collector to issue the notice, dated 17th July, 1954, was questioned were: (1) Section 64 of Act II of 1864 excluded the operation of the provisions of that Act in the case of the petitioner, who was a resident of Madras; and (2) the proceedings for the recovery of arrears of income-tax were barred by limitation under Section 46(7) of the Income-tax Act Since, in our opinion, the first contention is well founded, it may not be necessary to examine the correctness or otherwise of the second of the contentions.

(3.) THE rule is made absolute. THE petition is allowed with costs. A writ of prohibition will issue restraining the Collector from enforcing the notice of demand ie issued on 17th July, 1954. Counsel's fee Rs. 250.