2001 PLP 3672 (PTD)

Held, dismissing the writ petition, that if some allowance was not to be included in the income of the petitioners such as breach of rest allowances or the torch cell allowance the petitioners were free to claim that the allowances need not be included in salary for purposes of deduction of tax at source under section 192 of the income Tax Act, 1961. This was not a fit case to interfere in the petition under Article 226 of the Constitution of India, as an adequate remedy is provided in the Income‑tax Act. The interest of the Revenue had to be kept in mind. If interference were made under Article 226 of the Constitution, then, the interest of the Revenue would be jeopardised for a long duration, if the petition failed. It is a well settled principle of law that when a remedy is provided, then, the Court though it can exercise its power under Article 226 of the Constitution, should be slow to use its Constitutional powers even though they are discretionary. A mandamus can be issued only for the performance of a statutory obligation. There was no statutory obligation for making a representation to the authority and to pay tax only after the decision of the authority. B.L. Nema for Petitioners. S.K. Mukherjee for Respondents Nos. 1 to

4. V.K. Tankha for Respondent No.5. By means of this petition, the petitioners who are 232 in number have corm to this Court, seeking relief for grant of a declaration that the breach of rest allowance and the torch cell allowance cannot be subjected to income‑tax to the extent referred to in the notifications dated July 1, 1992 (Annexure P.2 to the petition), and dated July 7, 1995 (Annexure P.3 to the petition), and for directing respondents Nos. l to 5 for not deducting the income‑tax at source from the amounts of torch cell allowance and the breach of rest allowance as provided in section 10(14) of the Income Tax Act, 1961 (hereinafter referred to as "the Act"). . Heard learned counsel for the petitioner, Shri B. L. Nema, and learned counsel for respondents Nos. l to 4, Shri S.K. Mukherjee, and learned counsel for respondent No.5, Shri V.K. Tankha. The case of the petitioner, as is stated by learned counsel for the petitioners, is that the petitioners who, while on rest, when called on duty, are given breach of rest allowance and apart from this, torch cell allowance is also provided and these allowances, as is submitted by learned counsel for the petitioners, should not be computed in the income from salary. The deduction at source under section 192 in the case of the income -tax chargeable under the head "Salaries" is an obligation of the employer. If some allowance is not to be included in the income of the petitioners such as breach of rest allowances or the torch cell allowances are not to' be included in the income chargeable under the head "Salary", then, the petitioners are always free to claim deduction before the Income‑tax Officer under the aforesaid Act and whether such an allowance is to be included in the salary or not under the head "Salary" would be decided by the Income‑tax Officer, and once it is decided by the Income‑tax Officer, then, the same would attain .finality and in the subsequent year, if such a deduction is not permitted by the income‑tax authority, such allowances will have to be included in the income chargeable under the head "Salary". If inclusion of such allowances is exempted by the income‑tax authority from the income chargeable under the head "Salary" then the petitioners would, in the subsequent years, get the refund of the advance tax deducted in the current year. Thus, in such a case, they will be entitled for refund. I do not consider it a fit case to interfere to the petition under Article 226 of the Constitution of India, as an adequate remedy is provided in the Income‑tax Act. The interest of the Revenue has to be kept in mind. If interference is made under Article 226 of the Constitution then, the interest of the Revenue would be jeopardized for a long duration, if the petition fails. It is well‑settled principle of law that when a remedy is provided, then, this Court though it can exercise its power under Article 226 of the Constitution, should be slow to use its Constitutional powers even though they are discretionary. Learned counsel for the petitioners next submitted that a mandamus may be issued to the respondents for deciding the case of the petitioners in respect of, the deduction of the income‑tax at source in respect of the objection of the petitioners that the breach of rest allowance and torch cell allowances shall not be held a part of the "salary" and, therefore, there cannot be a deduction at source on that amount. A mandamus can be issued only for the performance of a statutory obligation. Learned counsel for the petitioners has not pointed out as to whether there is a statutory obligation for making a representation to the authority and to pay tax only after the decision of the authority as to whether the particular allowance is to form a part of the income or not to form a part of the income. No such obligation is pointed out. Since, there is no such statutory obligation, no writ in the nature of mandamus can be issued for deciding such an issue. However, this order will not come in the way of the petitioners to pursue the authority making the deduction of tax at the source for considering the matter as to whether such an income should be included under the head "Salary" and the tax be deducted at source. The writ petition is sans merit and is accordingly rejected. M.B.A./583/FC Petition dismissed.