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Modi Sugar Mills Ltd. Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 263 of 1962
Judge
Reported in[1983]144ITR29(All)
ActsIncome Tax Act, 1922 - Sections 29, 46 and 67; Income Tax Act, 1961 - Sections 226
AppellantModi Sugar Mills Ltd.
RespondentUnion of India (Uoi)
Excerpt:
- - land revenue act, that the plaintiff's suit was not within limitation and was bad for nonjoinder of the collector, meerut, that the suit was barred under section 67 of the indian i. act that it was not bad for non-joinder of necessary parties, that it was not barred by limitation nor was the, notice issued under section 80 of the cpc invalid. ' 11. in our opinion, the contention of the learned counsel for the appellant is well founded that the assessment order against a defunct company is invalid. under civil law, it is well known that an ord'er against a dead person is a nullity. in the present case, the amalgamation order was passed on march 25, 1956, by the punjab high court and an observation was made in the order to the effect that the transferor-company shall be dissolved.....k.p. singh, j. 1. this is a plaintiff's appeal arising out of a suit for recovery of rs. 73,087.69 along with future interest at the rate of 6% per annum and directed against the judgment dated may 23, 1962, of the 2nd civil judge, meerut, dismissing the suit.2. the brief facts of the case are as follows:modi supplies corporation ltd. was a public limited company and dealt in the manufacture and sale of biscuits, confectionery and hurricane lanterns. in the year 1956, the aforesaid company was amalgamated with the modi sugar mills ltd. and stood dissolved with effect from august 25, 1955, as is evident from the order of the punjab high court dated may 25, 1956, in civil original petition no. 23 of 1956. it was alleged by the modi sugar mills ltd. (plaintiff) that the i.t. department of.....
Judgment:

K.P. Singh, J.

1. This is a plaintiff's appeal arising out of a suit for recovery of Rs. 73,087.69 along with future interest at the rate of 6% per annum and directed against the judgment dated May 23, 1962, of the 2nd Civil Judge, Meerut, dismissing the suit.

2. The brief facts of the case are as follows:

Modi Supplies Corporation Ltd. was a public limited company and dealt in the manufacture and sale of biscuits, confectionery and hurricane lanterns. In the year 1956, the aforesaid company was amalgamated with the Modi Sugar Mills Ltd. and stood dissolved with effect from August 25, 1955, as is evident from the order of the Punjab High Court dated May 25, 1956, in Civil Original Petition No. 23 of 1956. It was alleged by the Modi Sugar Mills Ltd. (plaintiff) that the I.T. Department of the defendant assessed the defunct Modi Supplies Corporation Ltd. for the assessment year 1952-53, under the order dated March 29, 1957, passed by the ITO and that the assessment order was void as it was against the company which was not in existence.

3. It was further stated that the I.T. Department enforced the assessment order against the plaintiff and had realised the amount of income-tax assessed against the defunct company, i.e., Modi Supplies Corporation Ltd., from the plaintiff, that the plaintiff was not an assessee under theprovisions of the I.T. Act, hence the realisation of the amount from the plaintiff was illegal and that the ITO also acted illegally in levying a penalty of Rs. 7,000 under Section 46(2) of the Indian I.T. Act, 1922, upon the plaintiff. The plaintiff further alleged that since the very assessment was void, neither the penalty would have been imposed upon the plaintiff nor the amount could have been realised from it.

4. It was also pleaded that the plaintiff-company was not made a party to any of the assessment proceedings by the I.T. Department against the transferor-company, hence the plaintiff could nof be made liable for the assessment made on the transferor-company, and that since the amount was illegally realised under threat and coercion, the defendant was liable to refund to the plaintiff a sum of Rs. 73,087.69. Another allegation was that a notice under Section 80, CPC, had been served on the defendant through the Secretary, Ministry of Finance, Government of India, New Delhi, and, in the circumstances, the plaintiff was obliged to file a suit for the recovery of the aforesaid amount.

5. The defendant contested the claims of the plaintiff on the allegations that the proceedings for the assessment were commenced before the dissolution of the Modi Supplies Corporation Ltd. and a notice under Section 22(2) of the Indian I.T. Act, 1922, was served on the Corporation on May 28, 1952, that the return was filed by the Modi Supplies Corporation Ltd. on September 23, 1953, that according to the order of amalgamation passed by the Hon'ble High Court of Punjab, the plaintiff was liable to pay the tax on behalf of the Modi Supplies Corporation Ltd., that the recovery certificate of the amount concerned was issued in the name of Modi Supplies Corporation Ltd. through Modi Sugar Mills Ltd., that it was received by the Finance Secretary of the plaintiff and that the amount in dispute was recovered as land revenue, hence the plaintiff's suit was barred under Section 233(m) read with Section 183 of the U.P. Land Revenue Act, that the plaintiff's suit was not within limitation and was bad for nonjoinder of the Collector, Meerut, that the suit was barred under Section 67 of the Indian I.T. Act and the notice under Section 80, CPC, was defective, that the plaintiff was liable to pay the income-tax assessed against the Modi Supplies Corporation Ltd. and was not at all entitled to claim any interest from the defendant and that the plaintiff's suit was not maintainable. Besides, various other pleas were taken.

6. The trial court framed necessary issues arising out of the pleadings and found that the assessment order was valid, that the penalty was correctly imposed upon the plaintiff, and the tax was legally recovered from it, that the plaintiff was not entitled to any interest and was bound to pay the liabilities of the Modi Supplies Corporation Ltd., hence the plaintiff was not entitled to claim any refund, that the plaintiff's suit was not barred under Section 233(m) read with Section 183 of the U.P. Land Revenue Act, that the plaintiff's suit was barred under Section 67 of the Indian I.T. Act that it was not bad for non-joinder of necessary parties, that it was not barred by limitation nor was the, notice issued under Section 80 of the CPC invalid. With these findings the plaintiff's suit was dismissed with costs.

7. Aggrieved by the decision of the trial court, the plaintiff has preferred this appeal and the learned counsel for the appellant has urgedbefore us the following points :

(1) that the assessment order against a defunct company was illegal;

(2) that the plaintiff was not liable to pay the assessed amount against Modi Sugar (sic) Corporation Ltd.;

(3) that no liability could be fastened on the plaintiff due to the amalgamation order passed by the Punjab High Court;

(4) that the suit was not barred under the provisions of Section 67 of the Indian I.T. Act;

(5) that the trial court erred in entertaining the plea about fraud and estoppel in the circumstances of the present case.

8. Learned counsel for the respondent in reply submitted that the plaintiff's suit was rightly held to be barred by the provisions of Section 67 of the Indian I.T. Act, that the trial court was also right in holding that the plaintiff was liable to pay the tax assessed against the defunct company, i.e., the Modi Supplies Corporation Ltd. as according to the amalgamation order passed by the Punjab High Court, the plaintiff was made responsible for all the liabilities of the Modi Supplies Corporation Ltd. and in this view of the matter, the reasonings and findings recorded by the trial court were sound.

9. We have heard learned counsel for the parties at some length and we shall deal with the contentions raised by the counsel for the appellant seriatim. A perusal of the record indicates that the contention of the learned counsel for the appellant that the order of assessment dated March 29, 1957, against the Modi Supplies Corporation Ltd. by the ITO is invalid as it is against a person not in existence, is correct. Exhibit 3 on record is the order dated January 27, 1969, passed by the I.T. Appellate Tribunal, Delhi Bench, Delhi, in I.T.A.O. No. 1 (955 of 1952-53, Modi Supplies Corporation Ltd. v. ITO, ''A' Ward, Meerut, and the following observations made therein may be usefully quoted ,in this connection :

'......Under the civil law no decree can be passed against a deadperson. It is a nullity even though the cause of action might have arisen when he was alive and the right to sue might have survived. As thelaw lays down no machinery for assessing a company which is defunct, the stand taken by the Department is unsustainable. The company has been dissolved and is dead for all intents and purposes save as provided for in the order of the High Court, or otherwise under any other provision of law for which purpose its liability may have survived. As the assessee-company has merged with the Modi Sugar Mills Ltd. and all the assets and liabilities had been taken over by the transferee-company assessment should have been made on the latter company.'

10. From the aforesaid quotation it appears that the Tribunal was also of the opinion that the assessment order against a defunct company was invalid. Even the trial court while deciding issue No. 6(b) observed as below :

'The learned counsel for the defendant has not referred to any provision of law under which an order could have been passed and prima facie the order of assessment passed against a person which did not exist, is not valid.'

11. In our opinion, the contention of the learned counsel for the appellant is well founded that the assessment order against a defunct company is invalid. Under civil law, it is well known that an ord'er against a dead person is a nullity. In the present case, the amalgamation order was passed on March 25, 1956, by the Punjab High Court and an observation was made in the order to the effect that the transferor-company shall be dissolved without winding up on the expiry of three months after the date of the aforesaid order, hence the company stood dissolved with effect from August 25, 1956. Since the assessment order was passed on March 29, 1957, by the ITO, it was clearly against a defunct company, hence the contention of the learned counsel for the appellant in this regard must be accepted.

12. We propose to deal with the second and the last contention of the learned counsel for the appellant relating to fraud and estoppel together. The trial court has held the plaintiff liable to pay the tax assessed against Modi Supplies Corporation Ltd. on the ground, that according to the amalgamation order, the liability to pay the tax was transferred to the plaintiff and the trial court also fastened the liability on the plaintiff 'on the ground that it was the duty of the plaintiff to have appraised, the income-tax authorities that the plaintiff had succeeded to the Modi Supplies Corporation Ltd. under the amalgamation order. In our opinion, the trial court has misread the evidence on record and has drawn a wrong presumption when it has observed that a perusal of the assessment order would show that it was a contested order and it would be presumed thatthe plaintiff had contested the proceedings before the ITO. The observation of the trial court is factually incorrect, that the plaintiff had not denied that the proceedings before the ITO after the amalgamation of Modi Supplies Corporation Ltd. with the plaintiff had been prosecuted by the plaintiff.

13. We may point out here that in para. 25 of the plaint, it was specifically alleged that the plaintiff-company was not made a party to any of the assessment proceedings under the I.T. Act against the transferor-company with the result that the plaintiff-company could not be made liable for the assessment made on some other company, namely, the transferor-company. Moreover, in para. 24 of the plaint also, it was alleged that no notices under Section 22 or Section 23 of the I.T. Act were issued to the plaintiff-company and, therefore, no assessment could be made. In view of the aforesaid allegations we think that the trial court made an absolutely wrong presumption about the plaintiff's participation in the proceedings before the ITO. The trial court was also not right in observing that the plaintiff had instituted the appeal before the AAC. We have gone through the order dated December 2, 1957, passed by the AAC and we have also perused the oral evidence on record and we do not find that there is any evidence worth the name indicating the plaintiff's participation in the proceedings before the AAC.

14. The trial court has applied the principle of estoppel against theplaintiff, even though no such plea was taken in the written statementnor was there any issue framed in the present case on the ground ofestoppel. It admits of no doubt that a plea of estoppel cannot be entertained unless it has been raised in the pleadings and an issue has beenstruck on the same. The trial court has travelled beyond the pleadingsand its approach to the case on the principle of estoppel is entirely erroneous.

15. Further, the court below found the plaintiff-appellant liable to pay the amount assessed against Modi Supplies Corporation Ltd. on the ground that the plaintiff-appellant had fraudulently withheld itself from being substituted in place of Modi Supplies Corporation Ltd., specially when it contested the proceedings before the ITO concerned after the amalgamation order. It is noteworthy that in the written statement, the defendant-respondent had not taken the plea of fraud against the plaintiff. The court below proceeded to record a finding about the fraudulent action of the plaintiff only on the basis of suspicion and surmises. According to the trial court, it was the duty of the plaintiff to get itself substituted in place of Modi Supplies Corporation Ltd. before the ITO. We have; not been shown any provision of law under the Indian I.T. Act, 1922, whichcasts a duty upon the plaintiff to get itself substituted in place of the transferor-company, namely, Modi Supplies Corporation Ltd.

16. The findings of the trial court both with regard to estoppel and fraud are based on the erroneous assumption that the plaintiff has participated in the proceedings before the I.T. authorities. We have gone through the entire record and we consider it necessary to emphasise that there is no evidence at all which may lead to the inference that the plaintiff had participated in these proceedings. In Ex. A-4, the name of the appellant has been shown as Modi Supplies Corporation Ltd. and Mr. Malhotra has been shown as present for the appellant, but there is nothing on the record to indicate that Mr. Malhotra was in any way attached to the plaintiff-appellant. Hence, it cannot be concluded precisely that the plaintiff had prosecuted the appeal before the AAC. Similarly, in Ex. 1, there is an observation to the following effect :

' The assessee's representative was confronted with this and he has no explanation to offer......'

17. Learned counsel for the respondent urged that the plaintiff-appellant had prosecuted the proceedings before the ITO and he relied upon the words ' the assessee's representative ' occurring in Ex. 1 as quoted above. The name of the assessee shown in Ex. 1 is Modi Supplies Corporation Ltd., hence, the contention of the learned counsel for the respondent that the plaintiff-appellant had appeared before the ITO is also not demonstrated as correct for want of oral evidence on the point that the plaintiff-appellant or its representative was the assessee's representative before the ITO. Moreover, the appeal before the I.T. Appellate Tribunal was also dismissed on the ground that nobody in law could represent the defunct company. Thus, there is no evidence that the plaintiff-appellant or its representative had participated in the proceedings before the I.T. authorities.

18. The trial court has no doubt observed that the plaintiff gave outbefore the ITO that it was competent to challenge the said proceedingsand that the plaintiff fraudulently withheld itself from being substitutedin place of Modi Supplies Corporation Ltd. and upon the basis of thatvery fraud the plaintiff made an effort to escape the liability. We thinkthat the aforesaid findings recorded by the trial court are not based onany evidence and appear to be the result of mere suspicion and surmises.The inference of fraud on the part of the plaintiff is, in fact, without anypleading to that effect by the defendant-respondent. Hence, the approachof the trial court in this regard was wholly erroneous and its findingscannot be sustained.

19. The learned counsel for the appellant invited our attention to Section 2, Sub-clause (2) of the Indian I.T. Act, 1922, which runs as follows :

' ' Assessee ' means a person by whom income-tax or any other sum of money is payable under this Act, and includes every person in respect of whom any proceeding under this Act has been taken for the assessment of his income or of the loss sustained by him or of the amount of refund due to him.'

20. It was contended on behalf of the appellant that the appellant was neither an assessee as is evident from the various orders of the I.T. authorities on the record, nor was any notice of demand served upon the plaintiff as is required under the provisions of Section 29 of the aforesaid Indian I.T. Act. The learned counsel for the respondent could not point out any evidence on the record to the effect that the notice of demand was served upon the plaintiff-appellant or its officer. Hence, we hold that the contention of the learned counsel for the appellant to the effect that the plaintiff-appellant was not liable to pay the assessed amount against Modi Supplies Corporation Ltd. is correct.

21. Now, we proceed to deal with the third contention urged on behalf of the appellant, viz., that no liability can be fastened on the plaintiff by virtue of the amalgamation order passed by the Punjab High Court. The amalgamation order dated May 25, 1956, provided as follows :

'(1) the whole of the undertaking, property and liabilities of the transferor-company are hereby transferred to the transferee-company ;

(2) any legal proceedings pending by or against a transferor-company shall be continued by or against the transferee-company. '

22. Learned counsel for the respondent relied upon the above-mentioned amalgamation order and urged that the trial court was right in holding that the plaintiff-appellant was liable to pay the assessed amount against the transferor-company, i.e., Modi Supplies Corporation Ltd. The trial judge had also relied upon the amalgamation order and held that the plaintiff-appellant was liable to pay the assessed amount against the defunct company and the penalty under Section 46(2) of the Indian I.T. Act, 1922, was rightly imposed upon the plaintiff. According to the amalgamation order, the plaintiff generally can be held liable for the liabilities of the defunct company, namely, Modi Supplies Corporation Ltd. Even under the Indian I.T. Act, the plaintiff can be held liable but only when the proceedings had been launched against the plaintiff or it is satisfactorily established that the plaintiff had participated in the aforesaid proceedings and a valid notice of demand was served upon the plaintiff. We have already found that the evidence adduced on behalf of the defendant-respondent was not satisfactory to prove that the plaintiff-appellant had participated in the proceedings before the I.T. authorities. Hence, the plaintiff cannot be held liable under the Indian I.T. Act, 1922, for the liabilities of the defunct company.

23. The learned counsel for the respondent could not point out anything in the Indian I.T. Act, 1922, which provided a procedure for dealing with an amalgamated company. The learned counsel for the appellant had contended that despite the amalgamation order passed by the Punjab High Court, the plaintiff could not be held liable for the liabilities of the transferor-company, namely, Modi Supplies Corporation Ltd., as no valid proceeding had been initiated against the plaintiff-appellant under the aforesaid I.T. Act. We find that ' amalgamation ' has been denned in Section 2, Sub-clause (1A) and that definition has been added in the Act by the Finance (No. 2) Act, 1967 (Act XX of 1967). Obviously, the aforesaid definition will be effective only from April 1, 1967, whereas the plaintiff has been held liable for the assessed amount of the year 1952-53. Hence, the aforesaid definition has no bearing upon the question under consideration.

24. We are of the opinion that the contention of the learned counsel for the appellant has force that the plaintiff-appellant is not liable to pay the amount assessed against the transferor-company, i.e., Modi Supplies Corporation Ltd. despite the amalgamation order because no valid proceedings were initiated against the plaintiff-appellant nor did the plaintiff-appellant participate in the assessment proceedings before the I.T. authorities nor was the plaintiff-appellant a party to the proceedings under the Indian I.T. Act.

25. Lastly, it was contended before us that the trial court wrongly held that the suit was barred by Section 67 of the I.T. Act. According to the learned counsel for the appellant, the I.T. authorities did not serve any notice upon the plaintiff-appellant nor did the plaintiff-appellant participate in the proceedings before the I.T. authorities, hence the plaintiff-appellant was not bound by any order passed by the I.T. authorities. Since the I.T. authorities were not vigilant and did not care to proceed in accordance with law, their orders were clearly in violation of the principles of natural justice and the assessment by the ITO in respect of the year 1952-53 could not be made against the plaintiff-appellant in the circumstances of the present case. He invited our attention to the provisions of Section 25 of the Indian I.T. Act, 1922, and submitted that strictly speaking, the aforesaid provision was inapplicable to the case of a company. He further submitted that even if the aforesaid provisions applied to the case of a company, the ITO could not assess the plaintiff-appellant for the year 1952-53, as the plaintiff became the successor of the Modi Supplies Corporation Ltd. only in the year 1956 and, not prior to it. Even if the assessment made by the 1TO in Ex. 1 against the transferor-company, i.e., Modi Supplies Corporation Ltd., by his order dated March 29, 1957, is treated as being against the plaintiff-appellant, it was beyond his jurisdiction. It was also emphasised that no notice of demand under Section 29 of the Indian I.T. Act, 1922, was served upon the plaintiff-appellant, hence the recovery proceedings against the plaintiff were wholly illegal and without jurisdiction. Therefore, the plaintiff-appellant was entitled to bring the suit and the trial court acted illegally in accepting the defence plea that the suit was barred by Section 67 of the Indian I.T. Act, 1922. The learned counsel for the appellant invited our attention to Secretary of State v. Mask & Co. , and placed reliance upon the following observations:

' It is also well settled that even if jurisdiction is so excluded, thecivil courts have jurisdiction to examine into cases where the provisionsof the Act have not been complied with or the statutory Tribunalhas not acted in conformity with the fundamental principles of judicialprocedure. '

26. The next case relied upon by the learned counsel for the appellant in support of his arguments is Dhulabhai v. State of M.P. : [1968]3SCR662 . In the aforesaid case, their Lordships of the Supreme Court have laid down as to when a suit in a civil court is maintainable even though the orders of the authorities under different Acts have been made final or a provision has been made therein that no suit can be brought in a civil court to set aside the order passed under the Act. It would be pertinent to quote the gist of the conclusions drawn by their Lordships after examining the various provisions contained in different statutes (pp. 89, 90); (See at p. 434 of 22 STC):

'(1) Where the statute gives a finality to the orders of the special tribunals the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.

Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the lattercase it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.

(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the tribunals.

(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.

(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry,

(7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.'

27. The learned counsel for the appellant placed reliance upon (1), (5) and (7) enumerated above and urged that as, in the circumstances of the present case, since the plaintiff-appellant was not an assessee as denned in Section 2, Sub-clause (2) of the Indian I.T. Act, 1922, and the plaintiff-appellant was not served with any notice under the provisions of the aforesaid Act nor did the plaintiff-appellant participate in the proceedings before the I.T. authorities, the plaintiff had every right to challenge the order passed by the I.T. authorities in regular suit filed in the civil court. The learned counsel for the appellant placed reliance upon a ruling reported in Union of India v. Tarachand Gupta & Bros. : 1983(13)ELT1456(SC) and invited our attention to the observation made in para 22 of the judgment and emphasised that:

'...where a statute gives finality, such a provision does not exclude cases where the provisions of the particular statute have not been complied with or the tribunal has not acted in conformity with the fundamental principles of judicial procedure. The word ' jurisdiction ' has botha narrow and a wider meaning. In the sense of the former, it means the authority to embark upon an enquiry ; in the sense of the latter it is used in several aspects, one of such aspects being that the decision of the tribunal is in non-compliance with the provisions of the Act. Accordingly, a determination by a tribunal of a question, other than the one which the statute directs it to decide, would be a decision not under the provisions of the Act, and, therefore, in excess of its jurisdiction. '

28. The learned counsel for the respondent, on the other hand, urged that the constitutionality or unconstitutionality of any provision of the I.T. Act was not involved on the facts of the present case, hence the suit was rightly thrown out by the trial court. He emphasised that the trial court was right in its reasoning for holding that the suit was not maintainable in view of Section 67 of the Indian I.T. Act.

29. We have examined the respective contentions of the counsel for the parties. We think, in the circumstances of the present case, the ITO did not comply with the mandatory provisions of Section 29 of the Indian I.T. Act, 1922, as it had not been established in the case that any notice of demand was served upon the plaintiff-appellant, nor had it been established that the plaintiff-appellant participated in the proceedings before the I.T. authorities. Hence, the proceedings leading to the recovery of the disputed amount from the appellant were illegal and without jurisdiction. Since the assessment was made against the transferor-company which was defunct on the date of the assessment order and the amount of Rs. 61,577.87 was recovered from the plaintiff-appellant as is evident from Ex. 7 and Ex. 8 on the record, the recovery of the aforesaid amount from the appellant was wholly illegal and without jurisdiction in the circumstances of the present case. Thus, it is abundantly clear from the facts of the present case that the I.T. authorities had failed to comply with the very procedure prescribed by the Indian I.T. Act, 1922, and, in such event, a suit in a civil court would certainly be competent. The counsel for the appellant is right in contending that the plaintiff's suit was wrongly thrown out by the court below on the ground of the bar of Section 67 of the Indian I.T. Act, 1922.

30. For the reasons given above, the decision of the trial court is set aside and the plaintiff's suit is decreed. In the result, the appeal succeeds and is allowed with costs throughout.


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