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Rajmal Paharchand Vs. Commissioner of Income-tax, East Punjab : No. 2. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Miscellaneous No. 205/C of 1949
Reported in[1950]18ITR1011(P& H)
AppellantRajmal Paharchand
RespondentCommissioner of Income-tax, East Punjab : No. 2.
Cases ReferredSundar Singh Majithia v. Commissioner of Income
Excerpt:
.....be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ..........words are textually the same as the concluding words of sub-section (c), section 109, of the civil procedure code and, coupled with the carefully limited referential words to the civil procedure code in sub-section (3), suffice, in their lordships judgment, to exclude from any right of appeal cases which fall within the requirements of section 110 of the code and are operative to confine that right to cases which are certified to be otherwise fit for appeal to his majesty in council.'that being so, the sole question for determination is whether the present case satisfies the requirements of article 133(1)(c) of the constitution of india. article 133 of the constitution of india corresponds to section 109 of the civil procedure code.the point decided by the high court in reference.....
Judgment:
ORDER

Messrs. Rajmal Paharchand of Amritsar apply for leave to appeal to the Supreme Court of India against the final order passed by this Court on 26th July, 1949, on a reference under Section 66(1) of the Income-tax Act, 1922, hereinafter referred to as the Act, made by the Income-tax Appellate Tribunal. Allahabad Bench. The right of appeal to the Supreme Court of India from such a decision is given by sub-section (2) of section 66A and is confined to cases which are certified by the High Court to be fit for appeal to the Supreme Court of India. In construing sub-section (2) of Section 66A of the Act Lord Blanesburgh said in Delhi Cloth and General Mills Company Limited v. Income-tax Commissioner, Delhi :-

'These words are textually the same as the concluding words of sub-section (c), Section 109, of the Civil Procedure Code and, coupled with the carefully limited referential words to the Civil Procedure Code in sub-section (3), suffice, in their Lordships judgment, to exclude from any right of appeal cases which fall within the requirements of Section 110 of the Code and are operative to confine that right to cases which are certified to be otherwise fit for appeal to His Majesty in Council.'

That being so, the sole question for determination is whether the present case satisfies the requirements of Article 133(1)(c) of the Constitution of India. Article 133 of the Constitution of India corresponds to Section 109 of the Civil Procedure Code.

The point decided by the High Court in Reference No. 1 of 1942 is that before an Income-tax Officer can pass an order under Section 25A of the Act that the joint Hindu family property has been partitioned amongst the various members or groups of members in definite portions there must be a physical division of the joint Hindu family property. As pointed out in Gordhandas T. Mangaldas v. Commissioner of Income-tax, Bombay, the authorities in India on the point decided in Civil Reference No. 1 of 1949 are conflicting and in deciding cases under Section 25A of the Act Courts in India have expressed divergent views with respect to the rule laid down in Sundar Singh Majithia v. Commissioner of Income-tax, U. P. and C. P.

Now, the test to determine whether the case falls within Article 133(1)(c) of the Constitution of India is to see whether the point involved is of great public or private importance and is of such a nature that a decision thereon might result in a precedent governing numerous cases. Clearly, the point arising in the present case is of such a nature that a decision thereon will result in a precedent governing numerous cases. That being so, the case comes within Article 133(1)(c) of the Constitution of India and Section 109(c) of the Civil Procedure Code and we hereby certify that the case is a fit one for appeal to the Supreme Court of India.

Petition allowed.


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