after giving the relevant facts and submissions the appellant prayed that the high companyrt be pleased to issue a writ in the nature of mandamus or writ direction or order under article 226 of the companystitution directing the respondents to set off the refunds due to the petitioner under the aforesaid double taxation relief rules against the tax payable by it for the assessment year 1955 56.
the appellant then on october 7 1960 filed a petition under article 226 of the companystitution.
appellant in its letter dated june 30 1958 replied that numberprovisional claim for double income tax relief was made by the appellant within the time prescribed.
the appellant stated in the petition that unfortunately the companypanys assessment for the year in question was companypleted by the income tax officer on the last day of the financial year 1953 54 i.e. march 31 1954 being the last date on which their claim for double income tax relief should have been lodged.
37828 ii 0 and requested that a refund order passed at an early date.
the appellant at the material time carried on business number only in india but also outside india i.e. ceylon the former states of kolhapur and kapurthala and other places.
on december 18 1956 the appellant filed a revision under section 33a of the act against the said order before the companymissioner of income tax bombay.
i regret i cannumber companydone the delay in filing the claim as their is numberprovision under s. 50 for such companydonation.
226 of the companystitution prohibiting the respondents their officers servants and agents from demanding or recovering from the petitioner the tax payable by it for the assessment year 1955 56 without first setting off against that tax the refunds due to the petitioner under the aforesaid double tax relief rules.
226 for quashing the above orders of the companymissioner of income tax or the central board of revenue.
in absence of the assessment order being received by the companypany it was number physically practicable for the assesses to lodge its claim for double income tax relief and as such the time prescribed under s. 50 had already expired when the assessment order was received by the companypany.
the central board of revenue however by its letter dated june 24 1960 declined to interfere in the matter.
on june 27 1956 the income tax officer rejected the claim on the ground that the claim filed by the appellant was number within the time limit of four years laid down in rule 5 of the income tax double taxation relief indian states rules 1939 hereinafter called the indian states rules.
he observed that the assessment in the kapurthala stale was made on 20 3 1950 i.e. much before the assessment was companypleted by the bombay income tax officer.
numberhing prevented the petitioner therefore from filing a provisional claim before the period of limitation was over.
in short the argument was that although the applications claiming those refunds were submitted beyond the prescribed time limit nevertheless the appellant had a right still pursuant to the provisio of s. 49e to call upon the income tax officer to set off the refunds found to be due to the appellant against the tax demands raised by the income tax officer on the appellant.
the orders dated august 23 1958 and december 31 1958 cannumber be attacked in these proceedings.
the appellant then approached the central board of revenue.
the appellant did number take any steps to apply to the high companyrt under art.
at least it should haw made such a claim before the income tax officer at the time of assessment.
it is number necessary to give the facts relating to the income in ceylon and kolhapur because if the facts relating to the income made in kapurthala are stated these will bring out the real companytroversy between the appellant and the revenue.
it will be numbericed that numberprayer was made for quashing the order of the companymissioner dated august 23 1958 and the order of the central board of revenue dated december 31 1958.
89000.58 for the assessment year 1951 52 was kept in abeyance and later when the assessment for 1955 56 was companypleted the income tax officer had agreed to keep in abeyance rs.
it attached an original certificate for tax showing payment of rs.
it appears that in the meantime the petitioner had paid tax for the assessment years 1949 50 and 1950 51 and the demand for rs.
in this letter the appellant gave arguments in support of its request.
the central hoard of revenue by its letter dated december 31 1958 declined to interfere in the matter.
the appellant then wrote a letter dated september 4 1959 requesting the income tax officer to set off the refunds to which the appellant was entitled pursuant to the provisions of income tax to which the appellant was entitled pursuant to the provisions of income tax double taxation relief ceylon rules 1942 and read with the provisions of sections 49a and 48 of the income tax act in respect of the assessment years 1942 43 1943 44 and 1944 45 relating to ceylon and the assessment years 1947 48 and 1949 50 relating to kolhapur and kapurthala against the said demands.
on august 28 1959 the income tax officer issued three numberices of demand under section 29 of the act in respect of the assessment years 1949 50 1950 51 and 1951 52.
the appellant also approached the central board of revenue urging similar points.
on july 9 1954 the appellant wrote a letter to the income tax officer companypanies circle bombay stating that for the assessment year 1949 50 it was entitled to refund on the income taxed in kapurthala state.
sikri j. this is an appeal on a certificate granted by the high companyrt of bombay against its judgment dated february 24 1961 dismissing the petition filed by the appellant under article 226 of the companystitution of india.
