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The Commissioner of Income-tax and anr. Vs. the Income-tax Appellate Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 874D of 1966
Judge
Reported inILR1975Delhi723; [1975]99ITR552(Delhi); 1975RLR330
ActsIncome Tax Act, 1922 - Sections 66
AppellantThe Commissioner of Income-tax and anr.
RespondentThe Income-tax Appellate Tribunal and ors.
Advocates: B. Kirpal,; N.D. Karkhami and; S.P. Aggarwal, Advs
Cases ReferredConstitution of India. (See Deata v. Phagu
Excerpt:
(i) income-tax act (1922) - section 66--tribunal, whether bound to refer a question of law to high court although reference application filed before him is barred by time.; that an application under section 66(1) has to be mad within 60 days of the date upon which an aggrieved party is served with a notice of an order under sub-section (4) of section 33. section 66 does not enable the tribunal to entertain an application having been made beyond 60 days. however, according to sub-section (3) of section 66 in case if the tribunal rejects and application made to it under sub-section (1) on the ground that it is time-barred the remedy of the aggrieved party is to apply to the high court within two months from the date on which the aggrieved party is served with the notice of rejection of his.....prithvi raj, j.(1) by this petition under articles 226 and 227 of the constitution of india the petitioners have prayed that the order dated 27th january, 1966, passed by the income-tax appellate tribunal, delhi, (hereinafter called 'the tribunal') be quashed and that a direction be issued to it to entertain the petitioners' reference applications; in any event a direction is sought to the tribunal to entertain and decide petitioners' reference application no. 1722 of 1964-65 arising out of income-tax appeal no. 8113 of 1963-64. relevant facts necessary for the disposal of the petition are as under.(2) shri s. v. deva income-tax officer, special circle 'a' ward, kanpur, by his order dated 25th february, 1955, (annexure 'a') completed the assessment against the hindu undivided family of.....
Judgment:

Prithvi Raj, J.

(1) By this petition under Articles 226 and 227 of the Constitution of India the petitioners have prayed that the order dated 27th January, 1966, passed by the Income-tax Appellate Tribunal, Delhi, (hereinafter called 'the Tribunal') be quashed and that a direction be issued to it to entertain the petitioners' reference applications; in any event a direction is sought to the Tribunal to entertain and decide petitioners' reference application No. 1722 of 1964-65 arising out of income-tax appeal No. 8113 of 1963-64. Relevant facts necessary for the disposal of the petition are as under.

(2) Shri S. V. Deva Income-tax Officer, Special Circle 'A' Ward, Kanpur, by his order dated 25th February, 1955, (Annexure 'A') completed the assessment against the Hindu undivided family of Sahu Tagdish Prasad for the assessment year 1951-52. On Scrutiny of the personal account of the assessed-family it was noticed that there was a cash credit of Rs. 3,65,435.00 representing the sale proceeds of gold and sovereigns. The assessed explained the said assets as family heir-loom at the time of its partition in 1941 which were alleged to have been kept outside the books of account according to the practice with the family to create and maintain reserves in the form of cash, bullion, guinea and jewellery. The income-tax officer was satisfied with the said Explanationn and did not take the said amount into the account while passing the order, Annexure 'A', the assessed's claim of losses in respect of their two contract works was disallowed.

(3) Feeling aggrieved by the aforesaid assessment the assessed filed an appeal. The Assistant Appellate Commissioner of Income-tax, Kanpur, by his order dated 12th November, 1957, set aside the assessment order and remanded the case with a direction to compute the profits or losses from the two contract-works pointing out that be was not giving his findings on the other additions made in the assessment.

(4) In pursuance of the aforesaid direction Shri R. Kapur, Income-tax Officer, Meerut. by his order dated 27th March, 1961 (Annexure 'B') completed fresh assessment. While re-framing the said assessment he considered the question of genuineness of the aforesaid cash credits afresh and rejecting the assessed's Explanationn regarding the same which had earlier been accepted by Shri S. V. Deva, his predecessor, treated the cash credits totalling Rs. 2,52,291.00 representing the income of the assessed-family from undisclosed sources and took the same into account for the purpose of assessing the tax.

(5) The assessed-family filed an appeal against the aforesaid assessment order before the Appellate Assistant Commissioner, Meerut, objecting to the inclusion of income of Rs. 2,52,291.00 on twin grounds, namely, firstly that the income-tax Officer was not competent to reopen and re-consider the question of cash credits which had already been settled when the original assessment was made and having not been raised in the course of the hearing of their earlier appeal and, secondly, on the ground that the assessed-family was not given reasonable opportunity to establish its stand. Shri S. D. Gupta, Appellate Assistant Commissioner, Meerut, by his order dated 25th August, 1962, Annexure 'C' set aside the assessment order on the ground that the aforesaid amount had been treated as the income of the assessed- family from undisclosed sources on insufficient grounds and that the assessment had been completed in haste without proper investigation of the source of the deposit. He accordingly directed the Income- tax Officer to make a fresh assessment according to law. The Appellate Assistant Commissioner did not specifically deal with the principal objection of the assessed-family before him that Shri R. Kapur, Income-tax Officer was not competent to re-open and re-consider the question of the cash credits. The result of his order, however, was to reject the said contention without expressly dealing with the same. The assessed-family preferred an appeal before the Tribunal against the aforesaid order on the ground that the Appellate Assistant Commissioner should have held that the Income-tax Officer had acted beyond his competence and Jurisdiction in considering and including the aforesaid sum in the assessment. During the pendency of the aforesaid appeal of the assessed-family before the Tribunal Shri B. C. Mitter, Income-tax Officer, Special Investigation Circle 'B', Meerut, in pursuance of the orders of the Appellate Assistant Commissioner, Annexure 'C', made a fresh assessment on 21st February, 1963, vide annexure 'D', wherein he considered the question of the cash credits of Rs. 3,65,435.00 and included Rs. 2,52,291.00 there from which related to the previous year as the income of the assessed-family from undisclosed sources.

ITappears that during this period the Hindu Undivided Family of Sahu Jagdish Prasad stood disrupted by partition. Against the aforesaid order of Shri B. C. Mitter, four different appeals, mentioned below, were filed before the Appellate Assistant Commissioner, Meerut:

Assistant Commississener, Meerut: 'Appeal No. Name of Appellant. 1. 32/63-64 Sohu Jagdish Prasad (coparcener in erstwhile family) Pilibhit. 2. 26/63-64 Shri Madhav Prasad, Pilibhit. 3. 36/63-64 Shri Govind Prasad, Pilibhit. 4. 33/63-64 Sahu Jagdish Prasad, Karta H. U. F., Pilibhit'

(6) Shri S.D. Gupta, Appellate Assistant Commissioner, Meerut, passed four separate orders on 19th August, 1963, a copy of one of which orders is Annexure 'E', holding that the income-tax officer was competent to investigate the nature and source of the aforesaid credits in the course of revised assessment. He also held that the addition of Rs. 2,52,291.00 as assessed-family's income from undisclosed sources was justified and accordingly dismissed all the four appeals.

(7) Feeling dissatisfied with the aforesaid order the assessed filed four separate appeals, mentioned below, before the Tribunal :

I. T. A. No. Name of Applicant. 1. 8109/63.64 Smt. Lakshnii Devi, legal heir to Shri Girish Prasad (deceasad) Co-parcener of the erstwhile H.U.F. of Sahu Jagdish Prasad Pilibhit U.P. 2. 8110/63-64 Madhaya Prasad, Co-parcener of the erstwhile H.U.F. of Sahu Jagdish Prasad, Pilibhit. U. P. 3. 8111/63-64 Givind Prasad, co-parcener of the erstwhile H.U.F.C. of Sadu Jagdish Prasad, Pilibhit U. P. 4. 8113/63-64 1. Madhava prasad, 2. Govind Prasad, Sons. 3. Smt Lakshmi Devi widow Surviving members of the family of Sahu Jagdish Prasad, Ex-Karta Pilibhit U.P.'

(8) The Tribunal heard all the aforesaid five appeals together and disposed them of by its order dated 23rd November, 1964, Annexure 'F', holding that the Income-tax Officer was not competent to look into the source of the cash credits while making reassessment in pursuance of the order of the Appellate Assistant Commissioner dated 12th November, 1957.

(9) Petitioner No. 2 (Commissioner of Income-tax U.P.) filed a reference application under section 66(1) ofthe Income-tax Act, 1922 (herein called 'the Act') before the Tribunal which came up to be registered as R. A. 1722 of 1964-65. In the said application the respondents were described as under :-

'Commissioner of income vs. Shri Jagdish Prasad tax, Uttar Pradesh Ii Pilibhit and others. Lucknow Name&No.; of appeal which Shri Jagdish Prasad, gives rise to the reference Pilibhit and others, J. T. A. No. 5881/69-63 and 8109 to 8113/63-64, Assessment year 1951-52

ONreceipt of that reference application the Tribunal vide its order dated 2nd February, 1965, informed petitioner No. 2 that one reference application had been filed against three income-tax appeals. Consequently on 10th February, 1965, the Commissioner of Income- tax filed four fresh reference applications which were identical copies of the original application filed on 23rd January, 1965. The name of the respondent and the pairticulars furnished against the column 'Name and No. of appeal which gives rise to the Reference' were the same in all the five applications. The Tribunal dismissed the four applications filed subsequently on 10th February, 1965, on the ground that they were time-barred. With regard to the reference application No. 1722 of 1964-65 filed earlier on 23rd January, 1965, the Tribunal by its order, Annexure 'G', held that the application was. within time but dismissed the same on the ground that there should be as many reference applications as there were appeals and tha,t one reference application was not competent in respect of all those appeals. The Tribunal also held that the Commissioner of Income-tax could not be permitted to elect in respect of which appeal the reference application should be taken to have been filed.

(10) The aforesaid order of the Tribunal is challenged by the petitioner in this writ petition on the ground tb,a,t there was one assessment order against the Hindu Undivided Family of Sahu Jagdish Prasad, Pilibhit and even if there was disruption of the assessed-family as alleged by the assessed, there should have been really one appeal filed by the erstwhile Karta and that the separating members could either join in that appeal as appellants or they could file separate appeals but so far as the department is concerned it was not at all necessary that separate appeals should be filed against all the separating members who could be joined as respondents in one appeal as the cause of action was common and had arisen out of the same order; that in the reference application No. 1722 of 1964-65 filed by the department the number of different appeals filed by the separating members of the family had been clearly indicated and that the Tri- bunal was wrong in its view that there should have been separate applications for refernces under section 66(1) of the Act and that there was no justification at all for the Tribunal to reject all the reference applications including the reference application No. 1722 of 1964-65 which the petitioners had requested that they should be allowed to elect to pursue, as the same was filed within time and was competent and maintainable in law. In the circumstances the petitioners pray that the impugned order Annexure 'G' be quashed and seek a direction as noted in an earlier part of this judgment.

(11) Shri B. N. Kirpal appearing for the Revenue contended that the Tribunal exercises jurisdiction under section 66(1) of the Act not as a Court of appeal but only as a referring authority. That being so, the reference applications No. 8109 to 8113 of 1963-64 filed subsequently on 10th February, 1965, could not be dismissed as time-barred. It was incumbent on the Tribunal to take them into consideration and refer the question of law to the High Court.

(12) There is no merit in this contention. Section 66(1) of the Act prescribes that requisite application has to be made within 60 days of the date upon which an aggrieved party is served with a notice of an order under sub-section (4) of section 33. Section 66 does not enable the Tribunal to entertain an application having been made beyond 60 days. However, according to sub-section (3) of section 66 in case if the Tribunal rejects an application made to it under sub-section (1) on the ground that it is time-barred the remedy of the aggrieved party is to apply to the High Court within two months from the date on which the aggrieved party is served with the notice of rejection of his application. The High Court may, if it is not satisfied of the correctness of the Tribunal's decision, require the Tribunal to treat the application as made within the time allowed under sub-section ( 1 ). The Tribunal having rejected the reference applications filed subsequently on 10th February, 1965, the remedy of the petitioners was as provided in sub-section (3) of section 66. Sub-section (2) of section 29 of the Limitation Act envisages that where any special or local law prescribed for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, provisions of section 3 of the sa,id Act prescribes that subject to the provisions contained in sections 4 to 24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defense.

(13) The aforesaid applications having been filed beyond limitation, In the circumstances, were rightly rejected by the Tribunal. The department, if it felt aggrieved by the order of the Tribunal, having not taken recourse to the provisions of sub-section (3) of section 66 and having allowed the order of the Tribunal to become final, cannot turn round at this late stage to challenge the order of the Tribunal through this writ petition.

(14) This brings me to the other contention, namely, whether one Reference Application (No. 1722 of 1964-65) is maintainable in respect of all the five income-tax appeals (No. 5881 of 1962-63 and 8109 to 8113 of 1963-64) which were heard together and disposed of by the Tribunal by a common judgment dated 23rd November, 1964. The Tribunal noticing that the appeals pertained to the assessment case of the Hindu Undivided Family Sahu Jagdish Parsad pertaining to the year 1951-52 consolidated all the five appeals with the consent of the parties and disposed them of by a common judgment. It is no doubt true that a copy of the common judgment was placed on the record of the other four appeals (No. 8109 to 8113 of 1963-64) but the fact remains that the decision in all the five appeals was given simultaneously and the decision was in the same case, viz., assessment made in respect of the Hindu Undivided Family pertaining to the year 1951-52.

(15) It is well-settled that the cases where two or more appeals are consolidated and heard together, combining the controversy in the appeals into a single controversy and making the proceedings a single proceeding disposing them of by a, single Judgment, there is no warrant for holding that an appeal filed against the common judgment in one of the appeals is barred merely because no appeals were tiled in the connected cases because in such a case there is 'in substance a,s well as in form but one verdict and that there would be no justification to stifle the hearing of the appeal against such a judgment on the ground that the findings had become final operating as resjudicafa between the partics, as was held by a Full Bench of the Lahore High Court in Mst. Lachhmi v. Mst. Bhulli, A.I.R. 1927 Lahore 289 . In that case on the death of one 'A' his landed property was mutated half in the name of 'B' his widow and half in the name of 'C' the widow of his pre-deceased son. Each of those two ladies brought a suit for declaration that she was the sole owner of the land. Different issues were struck in each suit but they were disposed of by the same judgment a,nd by the consent of both parties the evidence in the suit filed by the widow was read as evidence in the other suit. On the basis of the common judgment two decrees were drawn. 'C' appealed against the decree in her own suit claiming that she was entitled to be the owner of the whole of the land. She, however, did not appeal against the decree granted to 'B' and the time for her doing so had long since expired. A contention was raised that the question at issue of 'C's appeal was res-judicata by the decision in 'B's suit being a final decision. The Full Bench held that 'where two suits, having a common issue are, by consent of parties, or by order of the Court tried together the evidence being written in one record and both suits disposed of by a single judgment' there being but one finding and one judgment, on no principle the hearing of the appeal in which that finding and judgment were under consideration be barred merely because no appeal had been filed in the connected suit which was disposed of by that judgment. It was observed that there had been in substance as well in form but one verdict and that it would be a traversity of justice to stifle the hearing of the appeal against such a judgment on the ground that the findings contained in it operated as rest judicata. In such a case there could be no question of the successful party being 'vexed twice' over the same matter; nor did the hearing of the appeal in any way militate against any rule of public policy, which requires that there must be an end of litigation.'

(16) Further it was held that there was nothing in the case to attract the principles underlying the rule of rest judicata but on the other hand, the acceptance of such a plea in such circumstances would strike at the very root of the basic conception of the doctrine which required that a party must have at least one fair trial of the issues resulting in a decision by the Court of ultimate appeal as allowed by the law for the time being in force.

(17) The above view of the Full Bench of the Lahore High Court was approved by their Lordships of the Supreme Court in Narhari and others v. Shanker and others, : [1950]1SCR754 . In that case the plaintiffs filed a suit for possession of 2/3rd of the suit land on the ground that according to the family custom the land belonged to them exclusively as members of the senior line as against the defendants who were of the junior line. There were two sets of defendants nos. 1 to 4 belonging to one branch of the family and nos. 5 to 8 to a,nother. The trial Court decreed the suit. From that decree, two separate appeals were taken by the two sets of defendants. The first appellate Court allowed the appeals and dismissed the suit of the plaintiffs by one judgment and ordered a copy of the judgment to be pla,ced on the file of the other connected appeal. On the basis of that judgment two decrees were prepared by the first appellate Court. The plaintiffs filed two appeals. With the first appeal was attached the decree passed in the appear of defendants I to 4 while with the second appeal was attached the copy of the decree passed in appeal of defendants 5 to 8. This second appear was beyond the period of limitation by 29 days and was filed on one rupee stamp paper with a note that full court-fee had been paid in the first appeal filed earlier. At the hearing of the appeals a preliminary objection was raised by the defendants that as the second appeal was filed beyond the period of limitation, it could not be maintained and that when that appeal was thus dismissed, the principle of rest judicata would apply to the first appeal and it should also fail. The High Court held that the plaintiffs should have filed two sep,a,rate appeals within the period of limitation and dismissed both the appeals holding that as the second appeal was admittedly time- barred, the first appeal also failed by the application of the principle of rest judicata. Dealing with- the contention the Supreme Court observed that-

'IT is now well-settled that where there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up. As has been observed by Tek Chand J. in his learned judgment in Mst. Lachhmi v. Mst. Bhulli, A.I.R. 1927 Lah 289, mentioned above, the determining factor is not the decree but the matter in controversy. As he puts it later in his judgment, the estoppel is not created by the decree but it can only be created by the judgment. The question of rest judicata arises only when there are two suits. Even when there are two suits, it has been held that a decision given simultaneously cannot be .a decision in the former suit. When there is only one suit, the question of rest judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit. As such, there is no question of the application of the principle of rest judicata. The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal. The two decrees in substance are one'.

(18) In the instant case the Tribunal combined all the five appeals (and disposed them of by a common judgment dated 23-11-64. The Tribunal because of the fact that all the appeals pertained to the assessment of the Hindu Undivided Family and pertained to the same assessment year, i.e., 1951-52, consolidated the appeals with the consent of the parties and decided them by a single judgment. It is no doubt true that .a, copy of the judgment was placed on the record of tour other appeals but the fact remains that decision in all the five appeals was. given simultaneously and as such all the five decisions are in the same case, viz., Hindu Undivided Family of which Sahu Jagdish Prasad was the Katra pertaining to the assessment year 1951-52. No doubt that in the four other appeals references applications were not filed within time but that would not create a bar against the hearing of Reference Application No. 1722 of 1964-65 because as observed by the Full Bench of the Lahore High Court in Mst. Lachhmi's case (supra) there being 'ex hypothesis' a single judgment disposing of five appeals, which judgment is sought to be impugned through the aforesaid reference application, the plea that the Tribunal's identical order dated 23rd November, 1964, in the remaining appeals would become final and binding cannot prevail.

(19) What was required to be done by the department was to put the judgment dated 23-11-1964, in jeopardy by making a reference application. That is what precisely it did by filing the reference application. The judgment dated 23-11-1964, which is under challenge and the legality of which is questioned cannot form the basis of rest judicata qua the other appeiaJs.

(20) In Papavinasom Subrammian v. Daivani Nagarama and others, A.I.R. 1954 TRA CO. 235, it was observed that when two suits involving common issues a,re disposed of by one judgment and an appeal is filed against the decree in one and not in the other, the decision given simultaneously cannot be a decision in a 'former suit'.

(21) Reference may also be made here to Appa and others v. Kachai Bayyan Kuttl and others, : AIR1932Mad689 . In that case there was one original suit, against the decree in which favor of the plaintiffs, two appeals were preferred to the lower appellate court by two sets of defendants. The result of the appeals was that the suit was dismissed by the lower appellate court and a decree dismissing the suit was passed. It was held that in such circumstances the plaintiffs need not file two second appeals and that it was enough if the plaintiffs file one second appeal.

(22) The appeal having been consolidaited, heard together and disposed of by a common judgment it is not open to contend that there had been five distinct and independent trials or that the other Reference applications having been dismissed as time-barred would give rise to anamoly or embarrassment because there is no conflicting judgment in the appeals. Besides, if the department succeeds in the Reference Application No. 1722 of 1964-65, it would be that decision which would supersede the Tribunal's decision dated 23-11-1964, in the other four appeals and would 'thenceforward the only effective adjudication'.

(23) In the view that I have taken no help can be drawn by the respondents from case Inder Singh and another v. State of Rajasthan, A.I.R. 1964 Raj 185. In that case 23 separate applications were pending before the Anti-Ejectment Officer in which there were separate applicants. The petitioners filed 23 separate applications for revision but they were disposed of by the Board of Revenue by a single judgment. The petitioners filed a single writ petition in the High Court. It was in those circumstances that it was held by the High Court that it was not open to the petitioners to file a single writ petition in respect of 23 cases and that separate writ petitions would be necessary.

(24) The above case is distinguishable on its own facts as 23 separate applications were pending before the Anti-Ejectment Officer pertaining to separate applicants. In the instant case, however, the dispute perta,ins to the assessment case of the Hindu Undivided Family, Sahu Jagdish Prasad, Pilibhit, for the assessment year 1951-52.

(25) The subject-matter in the five appeals is common and having been disposed of by a common judgment a single reference application is competent. It may bear mention here that the first appeal (No. 5881 of 1962-63) was filed by Sahu Jagdish Prasad during his life time against the order dated 25th August, 1962, Annexure 'C', of the Assistant Appellate Commissioner by which order he had set aside the proceedings under section 23 of the Act directing the Income-tax Officer to make a fresh assessment. The Income-tax officer made afresh assessment in pursuance of the aforesaid order. The assessed feeling aggrieved by the order challenged the same in appeal and the appellate Assistant Commissioner by his order dated 19th August, 1963, Annexure 'E', confirmed the order of the lncome-tax Officer. Before the appeal could be filed against this subsequent order of the Appellate Assistant Commissioner Sahu Jagdish Prasad, Karta of the assessed family died on 29th August, 1963. Accordingly, the surviving members of the erstwhile Hindu Undivided Family filed ' appeals Nos. 8109 to 8113 of 1963-64 against the subsequent order dated 19th August, 1963, passed by the Appellate Assistant Commissioner. The Tribunal in its order dated 23-11-1964, had noted the above facts staling that that was how the four appeals came to be filed for the very assessment year 1951-52. It is to be remembered that in appeal No. 8113 the appellants have described themselves as 'surviving members of the family of Sahu Jagdish Prasad, ex-Karta Pilibhit, U.P.' It, thereforee, cannot be contended that the appeal was filed on behalf of individual assessed involving his liability. The challenge in the appeal was to the liability of the erstwhile Hindu Undivided Family arising out of the assessment for the year 1951-52. the department was in the circumstances right in contending that the parties, assessment year and the subject-matter of all the appeals were identical.

(26) Case Khurjwata Buckles v. Commr. of Sales Tax, U.P. (1965)S.T.C. 779 is equally of no help to the respondents. In that case it was observed that one writ petition for the quashing of two assessment orders under two different taxing statutes even though the assessed is the same and assessing a,uthority is the same, cannot be entertained.

(27) The case of the Revenue is squarely covered by the decision of their Lordships of the Supreme Court is M/s. K. G. Khosla and Co. (P) Ltd. Delhi v. The D.C. of Commercial Taxes, Madras Division, Madras, : [1966]3SCR352 . In that case there were four revision petitions before the High Court. Two revisions were filed by the assesses and two by the State in respect of two assessment orders and they were disposed of by one common judgment. It was con- tended that the assessed should have filed four revision petitions before the Supreme Court. Repelling the contention it was observed that the subject-matter of the four revisions were the two assessments and the assessed was quite right in filing two appeals before the Supreme Court.

(28) Shri Karkhanis, learned counsel for the respondents placed strong reliance on Chandra Bhan Gosain v. State of Orissa and others, : [1963]50ITR195(SC) , Co wherein case of Lajwanti Sial (S.L.P. (Civil) No. 673 of 1959) was noted in which there were five appeals. There were in fact a number of separate references but were dealt with by one judgment. Their Lordships of the Supreme Court observed that a common judgment must be deemed to have been delivered in each of the different reference cases. Placing reliance upon their Lordships observations that common judgment must be taken to have been delivered in each of the different references it was contended that separate reference applications were required to be filed against the summon judgment of the Tribunal disposing of five appeals. The mere fact that the common Judgment has to be taken to have been delivered in each of the five separate appeals would not disentitle the department to file one single reference in view of the observations of their Lordships of the Supreme Court in Narhari's and M/s. K. G. Khosla's cases (supra).

(29) The Tribunal held that reference application No. 1722 or 1964-65 was a nullity and thus dismissed the same rejecting the contention of the Revenue that the defect in not properly describing the respondents be allowed to be removed as allowing sues a request, according to the Tribune, would amount to substituting an altogether a new application in the name of removing the defect. The Tribunal rejected the reference application also on the ground that the assessed in the said application was stated to be 'Sahu Jagdish Prasad and others'. The Tribunal put a question to itself as to who those 'others' were because it was not indicated in the appeal wherefrom to get them.

(30) It was required of the Department to mention the names of all the respondents clearly but at any rate the fact remains that the department had indicated the name to the assessed-family as Sahu Jagdish Prasad Pilibhit. Much capital cannot be made out of the fact that instead of giving the names of other respondents clearly the department chose to describe them as 'and others'.

(31) The Tribunal's powers in dealing with the appeals are of widest amplitude and identical with powers of an appellate Court under the Code of Civil Procedure as observed by their Lordships of the Supreme Court in case, income-tax Officer, Cannanore v. M. K. Mohammed Kunhi, (1969) 71 I.T.R. 815 (8). The Tribunal is not a court but it exercises judicial powers. As observed in the above-cited case because of its appella,te jurisdiction the Tribunal has the power of doing all such acts or employing such means as are essentially necessary for making orders for staying proceedings to prevent an appeal, if successful, from being rendered nugatory. Because of the powers of the Tribunal which are of 'widest amplitude and identical with powers of an appellate Court under the Code of Civil Procedure' in the circumstances of the case the Tribunal should have permitted the department to rectify the mistake in mentioning the names of the other respondents clearly instead of their being described as 'and others'.

(32) Reference here may be made to case Jhuta Ram v. Ram Sarup and others, A.I.R. 1937 Lahore 60. In that case a suit was instituted against several defendants of whom three were minors. The minor defendants were first represented by their relations as their respective guardians but subsequently as those relations refused to act as guardians a court official was appointed as the guardian of the minor defendants. The suit was dismissed. The plaintiff filed an appeal. The minor defendants-respondents were shown as being represented by the original guardians their relations, and not by the court official. The appeal was dismissed by the first appellate Court on the ground that the appeal was not properly represented as against the minors, and could not thereforee proceed as it could not proceed against those minors, having thus abated in its entirety. The view that it had abated was negatived holding that there was no question of abatement in the case. It was observed that the fact that there was a mistake in the description of the respondents should not entail the dismissal of the appeal. The defect in not properly impleading the respondents as parties to the appeal wa,s held to be a formal one which should be allowed to be corrected when brought to the notice of the Court. The case was accordingly remanded to the first appellate Court with a direction to proceed with the appeal on merits after the description of the minor defendants had been corrected and the service effected on their guardian.

(33) Reference may also be made here to a Division Bench decision of the Oudh High Court in Ch. Kanhaya Bux Singh and another v. Mst. Ram Dei Kuer and others, A.I.R. 1944 Oudh 62. In that case in the grounds of appear the appellants named themselves but did not mention the names of the idols, who were defendants in the suit either in the category f the persons appealing or in that of the respondents. Objection to the competency of the appeal was repelled holding that omission of names of the idols in the grounds of appeal amounted merely to a mis-description. The appellants were permitted to amend the memorandum of appeal so as to show distinctly the names of the idols. The omission was held to have not the effect of rendering the judgment of the trial Court final in regard to the question affecting the idols who were not imp leaded as parties to the appeal.

(34) Omission to implead the names of the other respondents in the appeal merely amounted to mis-description and being a formal one should have been .allowed to be corrected when brought to the notice of the Tribunal rather than entail the dismissal of the reference application.

(35) This brings me to the last contention raised half-heartedly on behalf of the respondents alleging that the impugned order, Annexure 'C', was passed on 27th January, 1968, but that the petition was filed on 10th October, 1966, and there being inordinate delay, the petition deserves to be dismissed on that ground.

(36) The petition having been filed within a period of nine months,cannot be said to suffer from inordinate delay or laches calling for its dismissal. It may bear mention here that the petition has been filed not only under Article 226 but also under Article 227 of the Constitution of India. There is no rule of limitation for preferring an application under Article 227 of the Constitution of India. (See Deata v. Phagu, 1969 D.L.T. 424.

(37) The view taken by the Tribunal that one reference application arising out of a common judgment disposing of five appeals was not competent being not tenable in law cannot be allowed to stand on a technical ground of laches, which contention otherwise is not supporta,ble on the facts of the case.

(38) In view of my discussion on various points, noted above, the writ petition succeeds and the same is hereby accepted with costs. The impugned order dated 27th January, 1966, Annexure 'G' is quashed. The Tribunal is directed to entertain the reference application of the Department (No. 1722 of 1964-65) and deal with it in accordance with law. Counsel's fee Rs. 200.


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