1. This is a special appeal directed against the judgment of Brijlal Gupta J. dated the 3rd November 1961 whereby the writ petition filed by the respondent was partly allowed and a writ of Certiorari was issued quashing the orders imposing penalty under Section 46 (1) of the Income-tax Act, 1922 (hereinafter referred to as the Act) in the sums of Rupees 533/- and Rupees 450/- and a writ of Mandamus restraining the Income-tax Officer from realising the said amounts.
2. The sole ground on which the orders levying penalties in the sum of Rs. 533 and Rs. 450/- were quashed was because of an admission said to have been made by the Income-tax Officer in his counter affidavit, 'that the contents of paragraph 14 of the said affidavit are admitted'. Paragraph 14 of the affidavit was as follows;
'That on the 28th November 1957 the Income-tax Officer Firozabad imposed a further penalty of Rs. 533/- on petitioner no. 1 under Section 46 (1) of the Income-tax Act. The Income-tax Officer acted without jurisdiction in imposing this penalty a? he had already once imposed a penalty on 2nd March 1957 for default and had forwarded recovery certificate to the Collector on 7th March 1957 under Section 46 (2) of the Income-tax Act.'
The learned single Judge observed 'that' on this admission alone the petitioners are entitled to a relief in respect of Rs. 533/-. The contention of the learned Standing Counsel for the Department that the admission on facts alone can be binding and not on law was rejected for the reason that the admission made in the counter affidavit was an unqualified one. In this view of the matter, the learned single Judge did not consider the two grounds which the petitioner had sought to challenge the levy of penalties.
3. In these circumstances, the only question which falls for consideration is, whether the learned single Judge was justified in treating the said admission of the Income-tax Officer as binding and conclusive?
4. The said paragraph 14 of the affidavit sets out some facts and then draws a legal inference of law therefrom. It is stated that penalty was levied on the 2nd March 1957 for default which was after the recovery certificate had been forwarded to the Collector on the 27th March 1957 under Section 46 (2) of the Act. From this the conclusion of law according to the deponent was that the Income-tax Officer had acted without jurisdiction in imposing a penalty. In the counter affidavit, when it was stated that paragraph 14 is admitted, that could only mean that the facts stated therein are admitted but not the legal inference which according to the petitioner, flowed from those facts.
5. To begin with the petitioner had no business in an affidavit to set out any legal contentions. The Rules of Court require that an affidavit shall be confined to such facts as the deponent is able of his own knowledge to prove except on interlocutory applications. A legal contention cannot be something which the deponent can prove from personal knowledge and yet the whole of the said paragraph 14 of the affidavit of the petitioner was sworn as 'true to my personal knowledge.' The learned single Judge, therefore, fell into an error in holding that the Income-tax Officer was bound by the admission made by him. The view taken by the learned single Judge in holding the appellant bound hand and foot by his admission on a question of law can perhaps only be justified on the ground that a single Judge is ordinarily bound to follow the decision of another single Judge and though there is no mention of the earlier case in Nand Kishore Rai v. B. Ganesh Prasad, Rai : AIR1929All446 decided by Dalai. J., it would seem that he had it at the back of his mind. There, it was laid down that an admission by a party's counsel on facts or law, is binding and cannot be reopened. In that case the counsel of the party had before the subordinate court made a statement that 'if the eaves be found to project over the rasta land then there can be no question that the projecting portion is liable to removal'. The subordinate court having acted thereupon, Dalai, J. felt that-
'it would be doing great injustice to a subordinate court of law to reopen a matter here which has been decided by that court on the admission of a pleader of a party.'
With all respect this decision does not lay down the law correctly and in any event must be confined to facts of that case. It is well settled in India, whatever may be the position in England, that.
'an admission on a point of law is not an admission of a 'thing' so as to make the admission a matter of estoppel within the meaning of Section 115 of the Evidence Act' (Jagwant Singh v. Silam Singh, (1899) ILR 21 All 285, 287).
It is again well settled that a party cannot be held bound by an admission on a point of law. It is always open to a party to assert that the admission on a point of law was erroneously or inadvertently made and 'that upon a true construction of the law' he may appear to be entitled (sic) (Jatindra Mohan Tagore v. Ganendra Mohan Tagore, (1872) LR Supp. IA 47 (PC).
6. In any event it is always open to a party to explain that the admission on a question of law was incorrect. Sections 17 and 31 of the Evidence Act make it clear that admissions relate to facts and that such admissions are not conclusive unless they operate as estoppel. The admission in the relevant case, contained in the counter affidavit of the appellant to the statement made in para 14 of the affidavit of the respondent, even if it could have been taken to be admission on a point of law, it would certainly not have operated as estoppel.
7. For the reasons given above the order of the learned single Judge cannot be sustained and it is directed to be set aside. The petition will now go back to a learned single Judge for determining the two-fold questions formulated but left undecided and for disposing of the petition in accordance with law.
8. The appeal is allowed but as duecare was not observed by the appellant inreplying to the statements made in the affidavit of the respondent and as the appealhas not been opposed there will be no orderas to costs.