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income-tax Officer, Gudur, and Another Vs. Maramreddy SulochanammA. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAndhra Pradesh High Court
Decided On
Case NumberSupreme Court Leave Petitions Nos. 58 to 67 of 1966
Reported in[1967]65ITR474(AP)
Appellantincome-tax Officer, Gudur, and Another
RespondentMaramreddy SulochanammA.
Excerpt:
.....under section 34 of the income-tax act were, therefore, bad in law. it is well settled that the test whether a certain order is final within the meaning of that article is whether that order finally disposed of the right of the parties covered by the proceeding. all that has been declared in the were it preceding is that the notices as issued were bad......that the order against which the appeal is sought to be filed is not a final order within the meaning of article 133(1) of the constitution of indian for it does not for its own force bounds or affect the right of the parties, and, notwithstanding this order, it is still upon in law to the department, subject to the a of limitation, to issue fresh notices under section 34 of the income-tax act. we may state here briefly, the fact of the case. one narayana reddi was an assessee and he died in 1948 leaving behind him his widow, five fighters and his mother. on his death the widow succeeded to his proprieties. when she was in possession of the entire estate, a will was brought to light as having been duly executed by the deceased. this naturally gave rises to disputed and litigation......
Judgment:

KUMARAYYA J. - These applications are under article 133(1) (a) and (c) of the constitution of India. The judgment against which the appeals is sought to be preferred is one of affirmance. Assuming that sub-clause (a) is attracted and the condition relating to the value of the subject-matter is fulfilled, it is further necessary, that the lapel should involve some substantial question of law. It is not possible to certify that it involves such a question. That apart, it is contended that the order against which the appeal is sought to be filed is not a final order within the meaning of article 133(1) of the Constitution of Indian for it does not for its own force bounds or affect the right of the parties, and, notwithstanding this order, it is still upon in law to the department, subject to the a of limitation, to issue fresh notices under section 34 of the Income-tax Act. We may state here briefly, the fact of the case. One Narayana Reddi was an assessee and he died in 1948 leaving behind him his widow, five fighters and his mother. On his death the widow succeeded to his proprieties. When she was in possession of the entire estate, a will was brought to light as having been duly executed by the deceased. This naturally gave rises to disputed and litigation. Three suit were filed in the Subordinate Judges Court, Nellore, which finally ended in a compromise on April 15, 1954, as a result where of the widows got about leaf of the property on Narayana Reddi. Of the remaining property the daughter and mother got some and some of the property was allotted to charitable institutions. Indeed there was a trust committee in relation to this charitable institutions. Narayana Reddi was an income-tax assessee. On this death, the Income-tax Officer stated proceeding treated the widow as representing his estate. He continued to do so even after the compromise April 15, 1954, in the above motioned suits. The widow died later in 1956. Before she died she bequeathed her share of properties to some of her daughters. On March 17, 1962, the Income-tax Officer found the some substantial amount for some years in the past had escaped assessment. He therefore decided to reopen the assessments for this years and accordingly issued separate notice under section 34 of the Income-tax Act for the year commencing from 1941-42 up to 1949-50. He served them on all the daughters of late Narayana Reddi but not on his mother and the trustees. The legality and validity of such notice laws brought into question on invoking the writ jurisdiction by the daughters. At a later stage of that commissioner to issue notice to the mother and the trustees invalidated the notices issued to the fighters also. This contention found favour with this court. The writ appeals preferred were also dismissed on that basis. It was observed therein that the department must be presumed to have known and was in fact aware of all the legal representatives. It knew full well all about the compromise decree. In these circumstances, failure to issue notices to the mother and the trustees of the charitable institutions invalidates also the notices issued to the daughters. The notices issued under section 34 of the Income-tax Act were, therefore, bad in law. The result of this decision was that the department could no longer continue proceedings started on the impugned notices. That did not however, precluded the authority from issuing notices fresh to all the legal representatives and completing the proceedings thus started according to law. The Income-tax Officer perhaps would have advisedly had recourse to such a step but for the time which had ready run against the department. It appears that, since the proceeding under the previous notice were started at a very late stage, by the time the order was passed, the time-limit for issuing fresh notice was over with the result order was passed, the time-limit for issued fresh notices was over with the result the he could not issue further notices under section 34 of the Income-tax Act.

Now, the question in these circumstance is whether the order appealed against is a final order within the meaning of article 133 of the Constitution of India. It is well settled that the test whether a certain order is final within the meaning of that article is whether that order finally disposed of the right of the parties covered by the proceeding. The proceedings as stated by the Income-tax Officer was for bringing to tax the mounts which had escaped assessment. All that has been declared in the were it preceding is that the notices as issued were bad. The question of right to bring total or the liability of the assessee has not been adjudicated upon under this order. This order of its own force does not affect the merits of the case between the parties by determining any right any liability. It is not an order finally deciding the right and liability of the parties involved in or formed the subject matter of the income-tax proceedings Hence it is not a final order within the meaning of article 133. That is also how it is argued on behalf of the respondents replying on T. A. Thangavelu Chettiar Co. v. Government of Madras, Shivram Poddar v. Income-tax Officer, Nidhpal Sharma v. Union of India, Seth Premchand Satramdas v. State of Bihar, Gurdwara Prabandhak Committee v. Shiv Rattan Dev. and Jethanand Sons v. State of U. P.

The contention of the petitioner, on the other hands, is that on account of the supervening bar of limitation no proceedings can now be started under section 34 of there Income-tax Act and, therefore the order passed must be presumed to be final. Further, it is urged since the proceedings as started by the Income-tax Officer as a result of the order comes to a close the order must be held to be final order. We do not think that, unless the order of its own force binds or affects the right and liabilities of the parties or finally determined them, it can at all amount to a final order within the meaning of article 133. The nature of the order cannot be affect by reason of any supervening events or any bar credited by the statute of limitation. If the order by its own force does not affect the rights and liabilities of the parties involved in the proceeding or finally determine then, it is not a final order within the meaning of article 133 of the constitution. In that premises, we cannot grant leave as prayed for, that apart, we are also unable to certify that it is otherwise a fit case within the meaning of articles 133(1)(c) .

The partitions are, therefore, demised with costs.

Petitions dismissed.


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