Normally Income Tax Act 1961 guides each and every dealing with Income Tax Department. Constitution is the source of whole legal and administrative framework in India. All the pillars of Indian system it be Legal System, Legislative Assembly or the administration – find their existence, working mechanism and defined boundaries in constitution. There can be no Law in India which violates the fundamentals of Indian Constitution. Constitution is like conceptual framework for Legal and Administrative set up In India. Constitution also provide some fundamental rights to the Indian Citizens as well as foreigners. When these rights can be used and what remedy can we expect from it – In respect of Income tax matters as well. Writ can be filed under Article 32 of Indian Constitution, which says as follows :-
32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution
Similarly article 226 provide for the writs in High Courts in India. Article 226 is as follows :-
226. Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose
(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause ( 2 ) of Article 32.
Under Article 32 Supreme Court entertain writs if fundamental rights of a person are under threat but under article 226 High Court can entertain Writs on Fundamental Rights and Other matters as well.
Fundamental rights are as follows :-
A.Right to Equality, B. Right to Freedom – This right inherently comprises- I. Protection in respect of conviction for offences, II. . Protection of life and personal liberty, III. Protection against arrest and detention in certain cases, C. Right against Exploitation, D. Right to Freedom of Religion, E. Cultural and Educational Rights.
For Income Tax purposes three type of writs need discussion.
Firstly, Writ of Mandamus – It is an order by the supreme Court commanding a person or a public authority(including the government and public institution) to do or forbear to do some thing in the nature of public duty or in certain cases of a statutory duty. Writ of mandamus can be granted when there is a statutory imposed upon the officer concerned. When the duty is mere discretionary in nature writ of mandamus will not lie [ State of M.P Vs. Mandawara AIR 1954 SC 493]. In Income Tax Act and Rules we find that before issuing notices reason to believe is necessary and under certain provisions Time Limit has been prescribed. In such circumstances on non confirmation of the duty casted upon authority this writ can resorted.
Secondly, Writ of Prohibition – This writ is issued primarily to prevent an inferior court for the purpose of preventing inferior from usurping a jurisdiction with which it was not legally vested or in other worts compel inferior courts (Including other Government bodies) from exceeding their jurisdiction [ East India Commercial Co. Vs. Collector of Customs, AIR 1962 SC 1893]. In this writ if principal of natural justice (i.e. “Hearing rule” which states that the person or party who is affected by the decision made by the panel of expert members should be given a fair opportunity to express his point of view to defend himself.Secondly,“Bias rule” generally expresses that panel of expert should be biased free while taking the decision. The decision should be given in a free and fair manner which can fulfil the rule of natural justice. and “Reasoned Decision” which states that order, decision or judgement of the court given by the Presiding authorities with a valid and reasonable ground.) has not been followed then aggrieved person can go to superior court.
Writ of Certiorari – This is issued by a superior court to an inferior court or body exercising Judicial or Quasi Judicial function to remove a suit from such court or body and adjudicate upon validity of the proceeding. The difference between Certiorari and Prohibition explained by Supreme Court “ When an inferior court takes up from hearing a matter over which he has no jurisdiction the person against whom such proceedings are taken can go for writ of prohibition……………….on the other hand if the court hear the cause or matter and gives a decision the party aggrieved would have to move for writ of Certiorari…………………..” When the case is pending and is not finally disposed off the court has to apply Prohibition and certiorari both —-Prohibition to prevent the court to proceed further with the case and Certiorari for quashing that has already been decided (Hari Vishnu Kamath Vs. Ahmed Ishaque, AIR 1955 SC 233).
Knowledge of writs is always an added advantage when there is no course of action is available with us under The Income Tax Act or other legislations.
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Sir , what are the possible writs under GST ?