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i.D.L. Chemicals Limited, Rourkela Vs. Income-tax Officer (Recovery), Sambalpur and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 448 of 1982
Judge
Reported inAIR1986Ori136
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9 and 20 - Order 7, Rule 10; Income-tax Act, 1961
Appellanti.D.L. Chemicals Limited, Rourkela
Respondentincome-tax Officer (Recovery), Sambalpur and ors.
Appellant AdvocateBihay Kumar Mohanty, Sr. Adv. assisted by Ch. P.K. Misra and B.P. Das
Respondent AdvocateS.C. Ray, Standing Counsel (Income-tax)
DispositionRevision allowed
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........of the court,8. normally, i would have set aside the order on this ground alone and directed the trial court to proceed in accordance with order 7, civil p.c. however, both mr. b. k. mohantyand mr. s. c. ray, agree that on the allegations in the plaint, the cause of action arose within the jurisdiction of rourkela court. therefore, in order to avoid delay, i direct the trial court to return the plaint to be presented in the court of subordinate judge, rourkela. i direct the plaintiff and defendants nos. 1 to 5 to appear in the court of subordinate judge, rourkela on 4th nov. 1985 and no further summonses shall be issued to these defendants. the subordinate judge, rourkela, however, shall issue summons to the other defendants and proceed in accordance with law without being influenced.....
Judgment:
ORDER

S.C. Mohapatra, J.

1. Plaintiff is the petitioner in this Civil Revision. It has assailed the order of the trial court answering two issues against it preliminarily.

2. Plaintiff is a company having its registered office at Hyderabad in Andhra Pradesh. It carries on its business in Orissa having established factory area at Rourkela for manufacture of explosives. It entrusted execution of some of the Civil Construction work in the factory area at Rourkela to defendant No. 6 B. R. Patel. At that stage, the Income-tax Officer, Ward-A, Rourkela issued a notice dt. 15-6-1971 purporting to be under Section 226(3) of the Income-tax Act, 1961 for withholding payments of certain amount to Defendant No. 6 towards the arrear tax of Defendant No. 7 M/s. East West Construction Company. Plaintiff sent a reply that DefendantNo. 7 is not connected with it in any manner. Defendant No. 2 intimated the plaintiff that Defendant No. 6 is a partner of the Firm, Defendant No. 7, in his letter dt. 4-9-1971. However, thereafter even Defendant No. 6 did not execute any further work and the liability of the plaintiff is in accounting stage. In June, 1973, Defendant No, 8, the power of attorney holder of Defendant No. 6, produced a tax clearance certificate of the Income Tax Department on which basis accounts were settled at Rs. 8,973.32 paise to be paid to defendant No. 6. Long four years thereafter, plaintiff received an order of attachment of Rs. 43,181/- from the Income Tax Recovery Officer (Defendant No. 1) directing the plaintiff to pay the arrear by 29-1-1977. Under such coercion, plaintiff had to pay the amount and thereafter it tried to explain the situation to the various authorities requesting for refund of the amount illegally extracted. When the plaintiff did not get hope of any result, it filed the suit for recovery of the amount on 29-1-1980 in the Court of the Subordinate Judge, Bhubaneswar, which was registered as O. S. No. 5 of 1980-III.

3. In the joint written statement on behalf of the Defendants Nos. 1 to 5 apart from disputing the claim on merits, the defendants' challenged the territorial jurisdiction of the Court since Defendants Nos. 1 to 4 hold their office beyond the jurisdiction of the Court. It was also stated that the relief prayed for by the plaintiff is not enforceable.

4. On the pleadings, seven issues were framed by the Court. On 9-11-1981, an application was filed by the plaintiff that issue No. 3 'whether the Court has jurisdiction to try the suit' to be decided first. In the said petition, it was also stated that in the event it is found that the Court would have no territorial jurisdiction, the plaint has to be returned to be filed in proper Court. This application was allowed by the trial court which decided to hear the issue No. 3 first. Before the issue was heard, on 12-2-1982 plaintiff filed an application for leave to pursue the suit in the trial court at Bhubaneswar. This application was purported to be one under Section 20(b), Civil P.C. On the same the preliminary issue relating to jurisdiction heard and the impugned order was passed on 25-2-1982.

5. The issue of jurisdiction involved twoquestions :

(a) territorial jurisdiction and

(b) bar of suit under Section 9, C.P.C. in view 6f Rule 9 of Second Schedule to the Income-tax Act, 1961.

Both the questions were answered against the plaintiff by the trial court.

6. Mr. B. K. Mohanti, the learned Advocate for the plaintiff-petitioner assailed the order both on merits and propriety. He submitted that, the learned Subordinate Judge ought to have first decided whether the court has territorial jurisdiction and then it should have considered the application fled on 12-2-1981 to grant leave under Section 20(b), Civil P.C. and in case it would have refused leave, it should have given opportunity to the plaintiff to take return of the plaint to present the same in proper court. Mr. Mohanii next submitted that once the Court came to the conclusion that it has no territorial jurisdiction, it should not have entered into the question of maintainability of the suit in view of bar under the Income-tax Act.

7. Under Section 20, Civil P.C. a suit of the present nature can be instituted in a Court within local limits of whose jurisdiction the cause of action or part thereof arose or any of the defendants, where there are more than one, resides, provided the leave of the Court is given or the defendants who do not so reside acquiesce in such institution. In this case, Defendants Nos. 1 to 4 have challenged the jurisdiction at the earliest opportunity in their written statement that the Court has no territorial jurisdiction. This objection was also considered and the trial court held that the cause of action or part thereof did not arise within the jurisdiction of that Court and admitting Defendants Nos. 1 to 4 reside outside the jurisdiction of the Court. On such a finding, it should have given opportunity to the plaintiff to take return of the plaint as is envisaged under Order 7 Rule 10, Civil P.C. Plaintiff, thereupon would have applied under Order 7, Rule 10-A, C.P.C supplying the particulars thereunder for necessary direction of the Court,

8. Normally, I would have set aside the order on this ground alone and directed the trial court to proceed in accordance with Order 7, Civil P.C. However, both Mr. B. K. Mohantyand Mr. S. C. Ray, agree that on the allegations in the plaint, the cause of action arose within the jurisdiction of Rourkela Court. Therefore, in order to avoid delay, I direct the trial court to return the plaint to be presented in the Court of Subordinate Judge, Rourkela. I direct the plaintiff and Defendants Nos. 1 to 5 to appear in the court of Subordinate Judge, Rourkela on 4th Nov. 1985 and no further summonses shall be issued to these defendants. The Subordinate Judge, Rourkela, however, shall issue summons to the other defendants and proceed in accordance with law without being influenced in any manner by the order dt. 28-2-1982 of the learned Subordinate Judge, Bhubaneswar, Plaintiff shall appear in the Court of Subordinate Judge. Bhubaneswar on 14-10-1985 to take return of the plaint.

9. In the result, the Civil Revision is allowed. No costs,


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