MAHABIR PARSHAD Vs. COMMR OF INCOME-TAX

JUDGEMENT

(1.) COUNSEL moves for issue of a writ in the nature of mandamus against the Commissioner of income-tax, Punjab in regard to an order passed on the 6th June 1948.

(2.) THE facts of this case are that in regard to an assessment order for the year 1944-45 a penalty of Rs. 1,200/- was imposed on the petitioner under Section 28 of the Income-tax Act which on appeal to the Assistant Appellate Commissioner was reduced to Rs. 900/-, but it appears that the order passed by the Appellate Assistant Commissioner Punjab was received by the petitioner after the 27th November 1946: what exact date it was is not stated in the petition. Under Section 33-A (2) of the Income-tax Act the petitioner filed a revision petition on the 26th November 1947. On the 6th June 1948 the Commissioner dismissed the petition as being barred by time. On the 25th June 1948 the petitioner filed an application for review against the above order under section 35 of the Income-tax Act. The petitioner alleges that no order was passed on this application, and that on the 8th April 1951 he made another application stating that his previous application dated the 24th June had been mislaid. He referred in his new application to a judgment of the Madras High Court which has since been reported as -- 'muthiah Chettiar v. Commr. of Income-tax, Madras', AIR 1951 Mart 204. in which the question of limitation was decided and prayed that his revision petition be restored and he be given a personal hearing. On the 22nd September 1951 this application was dismissed on the ground that the previous order was correct. He has now come up with an application for a writ of 'mandamus'.

(3.) THE order in regard to which he wishes a writ to issue is dated the 6th June 1948, and our power of issuing writs was conferred by the Constitution which came into force on the 26th january 1950. It has been held in -- 'keshavan Madhava Menon v. State of Bombay', 1951 S. C. R. 228, that the provisions of Article 13 of the Constitution have no retrospective effect and therefore it cannot affect an act which was done before the commencement of the Constitution. As the Constitution became operative only on and from the 26th January 1950 the powers conferred under Article 226 cannot affect orders which had already been passed, nor would this court have the power to interfere with such orders. This view is consistent with the view taken by a large number of other High Courts.