MADHAVLAL SINDHOO Vs. IDURKAR V R

JUDGEMENT

(1.) THIS is a petitions for a writ of prohibition or any other appropriate writ in a matter arising under the Income -tax Act. The facts leading up to this petition are not in dispute and I shall state them succinctly.

(2.) THE petitioner was served with a notice dated 23rd March, 1949, under section 34 of the Indian Income -tax Act by the Income -tax Officer, Calcutta. It was stated in the notice the Income -tax Officer had reasons to believe that the income of the petitioner for the assessment year 1944 -45 had escaped assessment and therefore it was proposed to reassess the income of petitioner. The Petitioner was required to deliver a return to the Income -tax Officer within 35 days from the receipt of that notice. An enquiry was held in pursuance of that notice. The Income -tax Officer, Calcutta, by an order made on 1st August, 1949, decided the case in favour of the petitioner. Another similar notice dated 9th March, 1953, was issued under the same section by the Income -tax Officer, A -V ward, Bombay, calling upon the petitioner to submit a similar return of his total income for the same assessment year, viz., 1944 -45. The petitioner objected to the jurisdiction of the Income -tax Officer at Bombay to issue the notice since he had always been assessed at Calcutta. Another notice dated 19th March, 1953, was served on the petitioner under the same section of the Income -tax Act. By that notice, the Income -tax Officer, Calcutta, called upon the petitioner to submit his return of his total income for the same assessment year, viz., 1944 -45. The petitioner submitted his return under protest to the Income -tax Officer, Calcutta, in April, 1953. Nothing, however, was done by the Income -tax authorities either in pursuance of the notice dated 9th March, 1953, or the notice dated 1953, but on 5th March, 1954, another similar, notice (4th in the series) was issued by the first respondent, who is the Income -tax Officer, A -V Ward, Bombay, under section 34 of the Act, calling upon the petitioner to submit a return of his total income for the same assessment year, 1944 -45. On objection being taken by the petitioner to the jurisdiction of the Income -tax Officer Bombay, to issue any such notice, when his income had all says been assessed in the previous years in Calcutta, the first respondent informed the petitioner that the Central Board of Revenue had transferred the case of the petitioner to the first respondent from the Income -tax Officer, Calcutta, to the first respondent in Bombay. The petitioner thereafter submitted his return under protest. On objection being taken by the petitioner to the notice under section 34, the first respondent replied that the as is of that notice was that the Income -tax Tribunal in the case of Bhagwandas Harakchand had held that a net profit of Rs. 2,31,315 for which that firm was sought to be assessed was really the profit of Madhavlal Sindhoo (the petitioner before me). Various contentions were raised by the petitioner before the Income -tax Officer and the matter is pending before him.

(3.) THIS statement of the law was principally based on a decision of the Court of Appeal in England in the case of Farquharson v. Morgan. I had occasion to consider that decision and other decisions in Prashar's case in which the petition for a writ of prohibition was in the first instance heard by me. I had also occasion to consider the general principles having bearing on the question of delay in an application for a writ of prohibition. In my opinion there is some difference between the English and Indian law on this question of delay. But it is not necessary to examine again the decisions of the English Courts on this question of delay. I shall only repeat what I stated in my judgment in Prashar's case : 'Basically and in a broad general sense both in India under our Constitution and in England where these prerogative writs owe their origin in the prerogatives of the Crown always to be safeguarded by the King's Courts, the grant of them is discretionary. An exception sought to be made in decisions of Court in England, that a writ of prohibition is in case of patent usurpation of jurisdiction demandable of right is, if those decisions are scrutinised, a result of the historical background of this prerogative writ. The root principle of the English law about jurisdiction is that the judges stand in the place of the sovereign and, therefore, necessarily to be restrained by prohibition. Such usurpation when it is patent has been judicially characterised as in contempt of the Crown. It is with this background that in England it has been held that in such a case the writ of prohibition is demandable of right. But no such considerations need weigh with this Court in appreciating the broad principle that granting of all writs under article 226 of the Constitution including the writ of prohibition is always discretionary though of course different considerations may prevail in case of different writs........................ The following propositions though not exhaustive of the subject are sufficient for the purposes of this case and I venture to think that rue measure and scope of the exercise of this jurisdiction and the discretion of this Court to issue a writ of prohibition under our law, in respect of proceedings in excess of jurisdiction, may be thus stated :