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income-tax Officer Vs. Ram Prasad Harish Chandra (by Legal Representatives) - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 292 of 1962
Judge
Reported in[1971]82ITR397(All)
ActsConstitution of India - Article 226; Code of Civil Procedure (CPC) , 1908 - Order 57, Rule 1
Appellantincome-tax Officer
RespondentRam Prasad Harish Chandra (by Legal Representatives)
Appellant AdvocateB.L. Gupta and ;R.R. Misra, Advs.
Respondent AdvocateGyan Prakash, Adv.
Excerpt:
- .....writ petition should have been dismissed on the ground of inordinate delay.7. the learned single judge dismissed the writ petition on the ground that the order of the income-tax officer was passed before the commencement of the constitution. in the review petition it was urged that, as the order of the income-tax appellate tribunal was passed on april 23, 1951, the court could exercise powers under article 226 of the constitution. the income-tax appellate tribunal was not a party to the writ petition. it is difficult to believe that the respondent was not aware of the judgment of the tribunal passed as far back as april 21, 1951. in paragraph 10 of the affidavit, accompanying the review petition, it is stated on behalf of the respondent that the respondent was not aware of the exact.....
Judgment:

Dwivedi, J.

1. The respondent, Ram Prasad Harish Chandra, was assessed to tax in the status of a Hindu undivided family for the assessment year 1944-45 on an income of Rs. 73,783. Subsequently, two other persons, Dr. B. N. Sarin and Messrs. Mukand Ram Radha Charan, were assessed to income-tax on Rs. 62,442 out of the income of Rs. 73,783 for which the respondent had already been assessed.

2. The respondent filed an appeal against the order of the Income-tax Officer. The appeal was dismissed by the Appellate Assistant Commissioner. Then the respondent filed an appeal before the Income-tax Appellate Tribunal. It appears that the Tribunal partly modified the order of the Income-tax Officer.

3. When the department was trying to realise the arrears of tax by sale of the respondent's house in 1957, the respondent filed a writ petition in this court on September 26, 1957. The writ petition was dismissed. Thereafter, the respondent made an application for review of the judgment dismissing the petition. The review petition was allowed. The learned single judge recalled his judgment dismissing the petition. He went further. He allowed the writ petition and directed the Income-tax Officer not to recover any tax in respect of Rs. 62,442 from the respondent. This appeal is preferred by the Income-tax Officer from this judgment of the learned single judge.

4. This appeal emphasises the importance of form and procedure in the adjudication of cases in courts. It appears to us that the learned single judge has allowed the writ petition in entire disregard of orderly procedure governing court's proceedings.

5. In the writ petition there are two precise prayers. Firstly, it is prayed that a writ, order or direction in the nature of a writ of mandamus 'be issued to the opposite parties directing them not to sell the attached house' for the recovery of the income-tax for the year 1944-45. Secondly, it is prayed that an interim order 'be issued staying the sale of the house during the pendency of the petition'. Then there is the ombinus prayer that 'any other suitable order or direction as in the circumstances of the case is proper be passed'.

6. There is thus no prayer in the petition for quashing the assessment orders of the income-tax authorities. Again, there is no ground in the writ petition challenging the assessment order for the year 1944-45. The only ground is that the income-tax department has no power to realise the tax with respect to the amount of Rs. 62,442 from the respondent as the tax had already been realised from the said Dr. B. N. Sarin and Messrs. Mukand Ram Radha Charan. So the respondent was assailing in his writ petition the recovery of the income-tax and not the assessment of income-tax on the sum of Rs. 62,442. Again, the order of the Income-tax Officer was passed on August 28, 1947. It does not appear as to when the Appellate Assistant Commissioner dismissed the appeal, but the Income-tax Appellate Tribunal modified the assessment order by its order dated April 23, 1951. The writ petition was filed, as already stated, on September 26, 1957. As there is no prayer for quashing the assessment order, there is no explanation for delay in filing the writ petition against the assessment order. It appears to us that in the course of arguments the learned single judge went into the question of the validity of the assessment orders. The attention of the learned judge was not invited to the shocking delay. There was a delay of more than six years. The writ petition should have been dismissed on the ground of inordinate delay.

7. The learned single judge dismissed the writ petition on the ground that the order of the Income-tax Officer was passed before the commencement of the Constitution. In the review petition it was urged that, as the order of the Income-tax Appellate Tribunal was passed on April 23, 1951, the court could exercise powers under Article 226 of the Constitution. The Income-tax Appellate Tribunal was not a party to the writ petition. It is difficult to believe that the respondent was not aware of the judgment of the Tribunal passed as far back as April 21, 1951. In paragraph 10 of the affidavit, accompanying the review petition, it is stated on behalf of the respondent that the respondent was not aware of the exact order passed by the Appellate Tribunal till a week ago when the defendant had the occasion to have a talk about the dismissal of the writ petition with Sri S. Vaish, chartered accountant of Kanpur, who had appeared before the Tribunal. It is further urged that the said Sri Vaish told him 'that the assessment order was modified and the appeal was not simply dismissed'. Then it is said that, as the respondent had been able to get any substantial relief from the Tribunal, the respondent was all through under the impression that the second appeal had been dismissed. These contents are verified from 'personal knowledge and belief'. It is not proper swearing and no reliance can be place on these allegations. Against, the respondent has admitted in the writ petition that Income-tax Appellate Tribunal had dismissed the appeal. It is, therefore, clear that, though the respondent was aware of the fact, the respondent did not implead the Tribunal as a party to the writ petition. No order of any income-tax authority appears to have been filed along with the writ petition. But along with the review petition the respondent filed the order of the Income-tax Appellate Tribunal, Later he made an application for impleading the Tribunal as a party to the writ petition.

8. It appears to us that an order under Article 226 may be reviewed on the same ground as the judgments or orders under Rule 1 of Order 57, Code of Civil Procedure. None of those grounds existed for review of the order. As the fact of dismissal of appeal by the Appellate Tribunal was known before the filing of the writ petition, it cannot be said that review of the order became necessary on account of the discovery of any new and important matter or evidence which after the exercise of due diligence was not within the respondent's knowledge or could not be produced by the respondent at the time when the order was made. There can be no case of error apparent on the face of the record as there did not exist any legitimate ground for review. The learned judge had no power to review his order, more especially on account of the irregularities, already indicated.

9. It is alleged in the writ petition that after the Tribunal had dismissed the appeal of the respondent an application under Section 66(1) of the Income-tax Act was made to the Tribunal for referring the case to this court for opinion. The Tribunal rejected the application. Thereafter, the respondent made another application in this court under Section 66(2) of the said Act calling for a statement of the case. It is further stated in the writ petition that the reference was pending at the time of the filing of the writ petition. The reference was, however, rejected by the court on August 10, 1959. The learned judge reviewed his order of dismissal after the rejection of the reference. It appears to us that the learned judge should not have reviewed his order after the rejection of the reference.

10. We would express our gratefulness to Mr. R. R. Misra for having brought all the material facts to our knowledge.

11. For all these reasons we allow this appeal and set aside the order of the learned single judge. The writ petition is dismissed with costs, which we assess at Rs. 200.


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