RAMAKRISHNA DEO Vs. AGRICULTURAL INCOME TAX OFFICER

JUDGEMENT

(1.) THIS is a petition under Art. 226 of the Constitution for quashing an order levying agricultural Income tax on the petitioner in the following circumstances : The assessment year in question is 1953 54, the accounting year being 1st July, 1951, to 30th June, 1952. The present petitioner is the adopted son of late Maharaja Vikram Deo Varma, the ex proprietor of Jeypore estate. Vikram Deo Varma died on 15th April, 1951, after which the petitioner succeeded as the proprietor of Jeypore estate in accordance with the custom of lineal primogeniture prevailing in the estate. The petitioner was accordingly recognised as the rightful successor to the above estate and was registered as the holder of the estate. On the death of the petitioner's father the petitioner not having completed his 21 years of age, by a notification in the Gazette of Orissa, the Court of Wards assumed charge of the estate on 24th May, 1951. The petitioner asserts that he had completed his 21 years of age on 2nd Dec., 1951; but nevertheless the estate still continued to be in the management of the Court of Wards till 16th March, 1953, when a release order was passed. In the meantime under the provisions of the Orissa Estates Abolition Act, 1951 (Act No. 1 of 1952), the estate vested in the State of Orissa on 29th Dec., 1952. The Agricultural IT Department issued a notice on the petitioner to file return of the agricultural income of the accounting year ending on 30th June, 1952. The petitioner raised objection before the Department that he was not liable for payment of tax as the estate was under the management of the Court of Wards. The objection was overruled and ultimately tax was levied on the petitioner. The petitioner filed an appeal against the order of assessment which was ultimately dismissed and a demand notice having been served upon the petitioner for payment of tax, he has sought protection of this Court under the provisions of Art. 226.

(2.) THE only contention of Mr. A. L. J. Rao, appearing on behalf of the petitioner, is that the order of assessment against the petitioner personally is illegal and without jurisdiction as it is in contravention of the provisions of S. 13 of the Orissa Agrl. IT Act, 1947 (Orissa Act No. XXIV of 1947). Under the provisions of this section, the Department is to proceed against the Court of Wards only and not against the petitioner personally as for the entire period of accounting the estate was under the management of the Court of Wards and the Court of Wards had received the agricultural income for the said year. From the dates mentioned above, that is, during the entire period from 1st July, 1951 to 30th June, 1952, the estate was under the management of the Court of Wards this position is not controverted. It is not controverted also that the Court of Wards, while in the management of the estate, had received the agricultural income for the said period. But Mr. B. Mohapatra, appearing on behalf of the Department, strongly relies upon the position that a double remedy is available to the Department either to proceed against the petitioner personally or against the Court of Wards. I should mention here that it is admitted that in fact for the year in question the Department had proceeded only against the petitioner personally and not against the Court of Wards.

(3.) OUR attention has been drawn to the provisions of S. 41(2) of the Indian IT Act running as follows :