THAKURLAL PODDAR Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THIS is an application under Art. 226 of the Constitution of India for the issue of a writ of certiorari to quash an order made on 30th Aug., 1952, by the ITO of Ratlam Circle directing the recovery of the rebate on tax allowed to the petitioner on a sum of Rs. 19,501 in the asst. yr. 1951-52.

(2.) THE petitioner states that he is the Karta and manager of a joint Hindu family carrying on the business of mining manganese ore in Jahbua district : that the family shifted from Hinganghat (formerly in C. P. but now in Bombay State) to Jhabua some time in 1949-50, and since then for the asst. yr. 1951-52 and subsequent years he has been treated as resident and ordinarily resident in Ratlam circle, which was a part of the former Madhya Bharat State; that in the asst. yr. 1951-52 his total income was determined at Rs. 53,225 and he was treated as an assessee falling under paragraph 4(1) of the Part B States (Taxation Concessions) Order, 1950, and allowed a rebate in tax under paragraph 6 of the said Order ; that in the asst. yr. 1952-53, the IT authorities discovered that during the accounting year 1951-52 the petitioner had remitted from what was then Madhya Bharat a Part B State, to Hinganghat, situated in the former Madhya Pradesh, a Part A State, Rs. 19,501; and that on account of this remittance, the ITO acting under cl. (a) of the second proviso to paragraph 6 of the Part B States (Taxation Concessions) Order, 1950, passed an order on 30th Aug., 1952, for the recovery of the amount of rebate allowed to the petitioner in the asst. yr. 1951-52 on a sum of Rs. 19,501. THE petitioner contends that the non-applicant had no jurisdiction to make this order under the second proviso to paragraph 6 of the Part B States (Taxation Concessions) Order, 1950, as, at the time of this remittance, the petitioner was not resident in any taxable territory other than Part B States. On this ground he prays for the issue of a writ of certiorari to quash the order dt. 30th Aug., 1952, of the ITO, Ratlam. THE applicant had appealed to the CIT against the order dt. 30th Aug., 1952, of the ITO, Ratlam. But his appeal was rejected by the CIT on the ground that the IT Act did not empower him to hear any appeal against an order for the recovery of rebate on tax allowed in a previous assessment.

(3.) THE provisions of the Order which are material here are contained in paragraphs 4 and 6 of the Order. Paragraph 4, while dealing with the scope of the main concessions, provides that the provisions of paragraphs 5, 6, 11 (1), 12 and 13 of the Order shall apply "in the case of an assessee who has been assessed or is assessable in the taxable territories as resident for three out of the six years of assessment commencing on the 1st April, 1944, and ending on the 31st March, 1950, to so much of the income, profits and gains included in his total income as would, had the assessee been resident also in the relevant previous year in the taxable territories other than Part B States, have been exempted under cl. (c) of sub-s. (2) of s. 14 of the Act, if it had not been extended to Part B States." Paragraph 6 of the Order reads as follows :