1. The appellant, Shiromoni Prosad Bhakat, complains of an order of Sinha, J., dated 20-3-1956, whereby the learned Judge declined to issue a Rule on an application made by the appellant under Article 226 of the Constitution of India. Although no Rule was issued, the learned Judge placed on record his reasons for not issuing a Rule in a short order.
2. The case concerns the appellant's assessment for the year 1947-48. It appears that in the return filed by him, he showed an agricultural income of Rs. 3,312, but the Income-tax Officer was not satisfied that the return made was correct and complete. Accordingly, he called upon the appellant to produce evidence in support of his return and in fact considered that evidence and heard the appellant on 10-11-1947. A short order, recorded on that date stated that evidence had been produced and it had been checked and that the assessment order would be made 'later on.'
3. The appellant's case is that he heared nothing further about the assessment till a Notice of Demand was served upon him on the 20th of August, 1952. On receiving the notice, he paid the tax under protest and at the same time applied for a certified copy of the assessment order. He obtained the certified copy on the 27th of October, 1952. The assessment order showed that the appellant's gross income had been determined at Rs. 46,663-12-0 and his taxable income at Rs. 21,734-5-0 and that the order had been made on the 28th of March, 1952. The tax assessed and demanded of the appellant was Rs. 1,841-5-0.
4. The appellant's case throughout has been that the assessment order was not really made on the 28th of March, 1952 when it was ostensibly made, but it was made on a later date. The assessment year being the year 1947-48, the 31st of March, 1952, would be the last date under Section 38(2) of the Bengal Agricultural Income-tax Act, on which the assessment order could be made, if it was to be made within the period of limitation. It appeared from the order-sheet that there was an order dated the 14th of July, 1952, in which the Income-tax Officer stated that although the assessment had been made on the 28th of March, 1952, the Notice of Demand had not yet been issued on account of 'a very unhappy oversight' and he directed an immediate issue of a notice. The appellant's case is that it was really on the 14th of July 1952, that the assessment order was actually made, but it was antedated to the 28th of March, 1952, in order to escape the bar of limitation, contained in Section 38(2) of the Act.
5. In his appeal to the Assistant Commissioner, the appellant did not directly take the point that the assessment order had been antedated, but merely stated in ground No. 2 of his grounds that 'the date of passing the assessment order and the date of communicating the same to the petitioner' were 'highly suspicious' and he suggested that the 'case or proceeding was in fact timebarred.' The Assistant Commissioner noticed the unusual delay which had occurred between the date of the hearing given to the appellant and the date of the assessment order, but he did not find that the order had been antedated. He, however, set aside the assessment order on the ground that in view of the efflux of time between the hearing of the case and the making of the order, some very material points had escaped from the memory of the Income-tax Officer and, therefore, the order passed by him, being based on an incomplete consideration of the arguments advanced, could not be sustained. On that finding, the Assistant Commissioner directed a fresh assessment.
6. The appellant next appealed to the Appellate Tribunal and urged the same points as he had urged before the Assistant Commissioner. He failed topersuade the Tribunal that the assessment order had been antedated, nor could he persuade them that he was entitled to a notice of the date on which the assessment order had been made. His appeal to the Tribunal was, accordingly, dismissed.
7. The appellant then took the next step provided for in the Act and made an application for a reference to this Court on a multitude of questions. With this application also he failed and the Tribunal declined to make a reference. He then moved this Court under Section 63(2) of the Act for a direction on the Tribunal to refer the questions formulated by him, but was again unsuccessful.
8. Having thus exhausted his remedies under the Act and failed to obtain any relief, the appellant turned to the Constitution of India. On the 20th of March, 1956, he moved this Court under Article 226 for a writ of certiorari, quashing the assessment order of the 28th of March, 1952 and all subsequent orders made in the proceedings, a writ of mandamus, directing the respondents to the application to forbear from enforcing the order of the 28th of March, 1952 and the subsequent orders and also a writ of prohibition, commanding the Agricultural Income-tax officer to forbear from proceeding with the fresh assessment. The application, as I have already stated, found no favour with Sinha, J., and he dismissed it at sight, although he gave certain reasons for doing so.
9. The order of the 28th of March, 1952, is no longer subsisting, having been set aside by the Assistant Commissioner on appeal by the appellant himself. It is, therefore, not clear why the appellant was asking for the quashing of an order which had already been set aside or why he found it necessary to ask for a writ of mandamus, directing the respondents to forbear from giving effect to that order. Since, however, the appellant included the subsequent orders as well, particularly the order for reassessment, the defect I have pointed out does not affect the maintainability of his application under Article 226 of the Constitution.
10. Mr. Sen, who has appeared before us in support of the appeal, has urged four grounds, but laid special emphasis only on two of them. His first ground is one which had been canvassed before the Departmental authorities as well. It is contended that this was not a case where the Income-tax Officer was satisfied without requiring the presence of the assessee or the production of any evidence by him that the return was correct and complete. Section 25(1) of the Bengal Agricultural Income-tax Act is thus out of the way. This was a case where the Income-tax Officer called for evidence and heard it and the contention is that if he did so, Section 25(3) was attracted and under that section, the appellant was entitled to a notice of the date when the assessment order would be made. In my view, this contention is plainly untenable. So far as the language of Section 25(3) is concerned, it certainly does not say that after an assessee has been heard on the day specified in the notice issued under Section 25(2) and after his evidence has been considered on that date, he has a further right to be informed of the date on which the assessment order will be made, if it is not made immediately or that it will be the duty of the Income-tax Officer to give such information. According to Section 25(3), the Agricultural Income-tax Officer is to assess the income of the assessee by an order in writing on the day specified in the notice issued under Sub-section (2) of the section 'or as soon as afterwards as may be.' It is thus not necessary that the assessment order itself must always be made on the date specified in the notice. It may be made afterwards, as the sub-section expressly states, but the sub-section does not further say that the assessee is to be convened again for the purpose of hearing the assessment order when the order is made on a subsequent date or that information of such date should, in any event, be given to him.
11. Mr. Sen realised the difficulty of making out IMS contention on the language of Section 25(3) and fell back upon certain observations of the Supreme Court in the case of Suraj Mall Mohta and Co. v. A. V. Visvanatha Sastri, : 26ITR1(SC) . In that case, the Supreme Court was dealing with the validity of certain provisions of the Taxation on Income (Investigation Commission) Act, in so far as they were different from the provisions of the Income-tax Act or the Code of Civil Procedure. In that context they observed that the proceedings before an Income-tax Officer were judicial proceedings and all the incidents of such judicial proceedings had to be observed before the result was arrived at. A glance at the judgment should be sufficient to satisfy anyone that the Supreme Court was dealing with quite a different state of things and that merely because they called proceedings before an Income-tax Officer judicial proceedings, it does not follow that the proceedings held by an Income-tax Officer are to be judicial to the extent of the assessment order having to be pronounced in the presence of the assessee or at least on a date communicated to him. In my view, there is nothing either in Section 25(3) or in the observations of the Supreme Court relied on by Mr. Sen to warrant the contention that an assessee under the Bengal Agricultural Income-tax Act is entitled either to be present at the time an orderfor his assessment is made or at least entitled to be informed of the date when the order will be made in cases where it is not made on the date of the hearing. The first contention of Mr. Sen must accordingly fail.
12. The first contention was, however, advanced merely in aid of the appellant's main contention which is that the assessment order was antedated and he was denied the legal right he had of inspecting the records and proving that there had been antedating, It is said that under Section 38(2) of the Act, an assessment is to be completed within four years from the end of the assessment year, concerned, except in certain cases which are not here material This provision, it is said, creates a right in favour of an assessee to be exempted from taxation for a particular assessment year, if the assessment is not completed within the time thus limited. The next step of the argument is that if such a right is created by the section, it is but ordinary justice that the assessee should have the means of asserting and enforcing that right when the need arises to do so and should have a full opportunity for proving that a particular assessment order, said to have been made within the period of limitation, was not, in fact, so made. The next step in the process of reasoning is that in order that an assessee may have the fun opportunity for proving his case, when his allegation as that an assessment order against him was not made within the period of limitation, he ought obviously to have a right to inspect the original records and make out his allegations with materials derived from them. On the basis of this alleged right of an inspection of the records, it is contended in the present case that inspection was refused and thereby a statutory right of the appellant, although it might be an implied right, was infringed.
13. I shall deal with this contention presently on its merits, but I find one initial difficulty in the appellant's way. By his application under Article 226, he asked for the assessment order of the 28th of March, 1952, and the subsequent orders passed in appeals or applications by him to be quashed on the ground that the assessment order had really not been made within the period of limitation, but was antedated and that if such had been the case, he could no longer be assessed at all and not only the original order of assessment but the order for reassessment as well was void. It must be noticed, however, that if the appellant asked for an inspection of the records, he must have done so after the order of assessment had come to his notice and, therefore, after the order of assessment had been made and, consequently, the order of assessment could not possibly have been vitiated by a subsequent refusal of the authorities to give him the inspection he is said to have wanted. This demand for an inspection and a refusal of it, if such demand and refusal at all took place, was a separate matter altogether and I do not find that the appellant's application under Article 226 was framed in a way which could reach it in any manner at all. The assessment order could be declared to be void, only if it was found on an inspection of the records that it had been antedated and only if such antedating could be proved to the satisfaction of the authorities or the Court, but it might as well have been found on inspection that there was nothing to show that the order had been antedated. In those circumstances, I am quite unable to see how the order of assessment or the subsequent order for assessment could be challenged as void on the ground of the former order having been antedated, before it was proved that antedating had, in fact, taken place and how the alleged refusal of inspection could possibly be made a ground of attack on those orders. The appellant did not saythat any order was made by anybody refusing him, inspection and did seek any relief against any such order.
14. I shall, however, put that difficulty on one side. On the merits of the question as to whether an assessee is entitled to an inspection of the records of his own assessment, it has been contended by Mr. Sen that Section 56 of the Act ought not to be construed as applying even, to the assessee himself and, alternatively, that if the section does really apply to the assessee as well, it is ultra vires the Constitution. I shall leave the second branch of this argument aside for the moment. Section 56 is expressed in absolute terms and so far as its language goes, it does not seem to provide any room for a contention that it intends the assessee himself and third parties to be differently treated. The assessment records of any assessee often contain a great deal of confidential matter derived from secret sources and the view that there cannot be any compulsory disclosure of the records even to the assessee is at least a plausible view. It was, however, conceded on behalf of the respondents that an assessee would be entitled to an inspection of the assessment order itself, because he is entitled to a certified copy of it. If the assessee is entitled to have a certified copy of the order, it is obvious that the contents of the assessment order are not intended to be kept back from him and if there be no such intention, there cannot be any objection to letting him inspect the original of the certified copy. The concession was qualified by a contention that the right of inspection could not extend to other materials on the record and that, in any event, an assessee could not have a roving inspection of the record as a whole in order to try to discover if there was anything contained in it which would be of assistance to him.
15. In my view, the appellant is not entitled to make any complaint of refusal of inspection in the facts of the present case. It does not appear, and he does not even contend, that he ever demanded of the Income-tax Officer an inspection of even the original assessment order, not to speak of the assessment records as a whole. What he did was that when his appeal was pending before the Assistant Commissioner, he made an application to that appellate authority, asking him to call for the production of all the records and praying that after the records have arrived, he might be given an inspection of them before the hearing of the case. The prayer for permission to inspect the records was thus not made to the assessing authority at all, but it was made to an appellate authority in the course of the proceedings in the appeal and the prayer only was that the appellate authority might, in the exercise of its judicial functions, bring up the records and that the appellant, as a party to the appeal, might be allowed to inspect the records after they had arrived. A prayer of this kind made to an appellate authority seized of an appeal, is something very different from a demand for inspection, made of the assessing Officer or the Departmental authorities. In my view, the appellant never demanded inspection of the records from the assessing authorities at all. Nor does the matter end here. The Assistant Commissioner made no order on this prayer and did not refer to it in the course of his judgment. In the next appeal which the appellant took to the Tribunal, not a word was said about the refusal of inspection of the records, either in the grounds of appeal or, so far as it appears from the judgment, in the course of the argument before the Tribunal. The only fact about this contention of Mr. Sen about the refusal of inspection is that his client had asked the Assistant Commissioner to call up the records and to allow him to see them after the records had been received. On that fact the appellant cannot possibly base any case that he had demanded inspection of the records to which he had a right and that such inspection had been refused to him and his right had been denied. The second contention of Mr. Sen must also, therefore, fail.
16. I do not think I need deal, at length, with the contention that if Section 56 of the Act applies to the assessee as well with respect to the records of his own assessment, it is ultra vires the Constitution. It was said that a person had a right to hold property, including the income he made from his agricultural lands and if any restraint was placed on his opportunities for protecting that income from being taken away from his by taxation, Article 19(1)(f) of the Constitution was violated. I hope I do no injustice to Mr. Sen when I characterise this contention as only fantastic, as I observed when he was advancing the argument. I cannot possibly see any application of Article 19(1)(f) to the case of restrictions placed on the right to inspect the records of an assessment on the basis that such restriction constitutes an invasion of an assessee's right to hold property, that is to say, the income sought to be taxed.
17. It is lastly contended that the proviso to Section 38(2) of the Act is void as being discriminatory and, therefore, no re-assessment can be made on a date lying beyond four years from the end of the assessment year. It is contended that, under the proviso, there is no time-limit at all for the reassessment directed by an appellate authority and that since the effect of such a provision is to discriminate between persons who are assessed and those who are re-assessed and to place the latter class of persons under a class disadvantage, it offends against Article 14 of the Constitution and, therefore, is of no effect. I do not think that this argument is of any greater merit than tie argument that Section 56 of the Act constitutes an unreasonable restriction on the right to hold property. There is no question of discrimination here at all. All that the proviso directs is that while an assessment is to be completed by the taxing authorities within a certain time, there will be no time limit when the assessment has been set aside and a proper assessment has been directed to be made. The Legislature obviously took into account the various exigencies of the administration of the Income-tax Law in freeing re-assessment proceedings from any bar of time. If there is any discrimination at all, it is, to my mind, based on a classification in accordance with a rational basis properly related to the object of the Act. I am not of opinion that the proviso to Section 38(2) of the Act is void and the argument that it is so appears to me to be plainly untenable.
18. For the reasons given above, this appeal is dismissed, but there will be no order for costs.
19. I agree.