1. The original plaintiff has filed this appeal against the dismissal of his suit by the Civil Judge, Senior Division, Halar at Jamnagar, on the ground 'that a suit for declaration that a person is a Benamidar was not maintainable under Section 42 of the Specific Relief Act.
2. The plaintiff had originally filed the suit against eight defendants. Defendants 1 and 2 were individuals who were partners of two firms which were joined as defendant No. 3 and defendant No. 4 and which firms had also some other unknown partners. Defendants Nos. 5 to 8 were Income-tax Officers The Union of India was added as a necessary party to the suit on 10th January 1948 pursuant to the order of the trial Court, dated 5th November 1957, to enable the Court to completely and effectively adjudicate the questions raised in the suit It was the plaintiff's case that defendants Nos. 1 and 2 as well as the two firms, defendants Nos. 3 and 4 had been residing at Bombay and doing business there while he resided at Jamnagar During the relevant period from Samvat Years 2004 to 2007 or thereabout defendant No. 1 had given the plaintiff about two lacs of rupees and that he had dealt with the said amounts as a Benamidar of defendants Nos. 1, 2 and 4 and/or other partners. It was the case of the plaintiffs that for the amounts and accounts shown in Exs 1 to 4 annexed with the plaint and mentioned separately in paras 8 and 13 of the plaint and which transactions were marked as Benami transactions, he was a mere Benamidar Defendant No, 3 firm had been closed in Svt Year 2005 and it seems that accounts entries in the name of the said firm in favour of the plaintiff were transferred to defendant No. 4 firm. It was finally the case of the plaintiff that all the remittances and withdrawals of moneys which took place for and on behalf of and at the instance of defendants Nos. 1 and 2 and of the other partners of defendant No. 4 were for the exclusive use and benefit of those defendants and the plaintiff had no interest of any kind whatsoever therein The plaintiff had only acted as a Benamidar of defendants Nos. 1 and 2 or other partners of defendants Nos. 1 and 4 in the said transactions by lending his name and the plaintiff had received no benefit whatsoever thereunder When the plaintiff had filed his return of income-tax for the Samvat year 2007 assessment year 1952-53 on 29th August 1952 at Jamnagar under Section 22(1) of the Indian Income-tax Act, 1922, before the Income-tax Officer; and had also filed the return for the income of Samvat year 2008 for the assessment year 1958-54 on 8th July 1953. During the pendency of the said proceedings, a letter had been received by him dated 10th October 1952 from the Income-tax Officer making some queries to which he had replied by his letter dated 28th October and 7th November 1952 enclosing a copy of the statements of accounts in his books of the various defendants and disclosing the real nature of the transactions between the plaintiff arid defendants Nos. 1 to 5. It was further the case of the plaintiff that on 6th May 1953 he sent to defendants 1 and 2 copies of the statements containing the aforesaid disclosures of the true facts but defendants 1 and 2 by their letter dated 12th May 1953 denied that the aforesaid dealings were Benami and were done for their benefit. The said liability was thus denied by defendants 1 and 2 in order to for the liability of tax and all other liabilities on the plaintiff. The plaintiff, therefore; gave a statutory notice under Section 80 of the Code of Civil Procedure to defendants 6 to 8, the Income-tax Officers, and he filed the present suit. In paras 21 prayers (a) to (d) he sought a declaration that the various transactions mentioned by him with defendants 1, 2 and 4 were Benami transactions. He prayed for a declaration that the plaintiff had no interest except as a Benamidar of defendants Nos. 1, 2 and 4 and/or their other partners in the amount or accounts mentioned in paras 8 to 13 of the plaint and no income-tax liability or other liability of any kind belonged to the plaintiff in respect thereof, and in prayer (h), he also sought a declaration that the formal receipts which he had passed in favour of defendants 1,2 and 4 in that connection be declared as inoperative and invalid. In prayer (e) he also asked for a permanent injunction against defendants 1 to 4 preventing them from denying that the said accounts and the said amounts mentioned in paras 8 to 13 in Exs. 1 and 4 belonged to or were received by defendants 1 to 4 or from other partners for their exclusive use and benefits' and from foisting any liability in respect thereof on the plaintiff. As regards defendants Nos. 5 to 9, the plaintiff sought in para (f) an injunction restraining them from including any of the said amounts referred to in paras 8 to 13 and in Exs. 1 to 4 in the income-tax assessments of the plaintiff or holding the plaintiff in any way liable in respect thereof Finally in prayer (g), a relief was sought against all defendants 1 to 9 for a permanent injunction restraining them from enforcing any liability in respect of the said amounts mentioned in paras 8 to 13 and in Exs. 1 to 4 against the plaintiff or from denying that the plaintiff had nothing to do whatsoever with the said accounts and amounts Among the various contentions raised on behalf of defendants: two principal contentions were that the said declaratory suit was not maintainable under Section 42 of the Specific Relief Act and that the same was barred under Section 67 of the Indian Income-tax Act, 1922. hereinafter referred to as 'the Act'. The trial Court decided these issues as preliminary issues and came to the conclusion relying on a decision in Slianta Shamsher v. Kamani Brothers Private Ltd. : AIR1959Bom201 that a Benamidar had no legal character and he could not maintain a suit under Section 42 of the Specific Relief Act. In view of the said finding, the decision on the issue regarding the bar of Section 67 was not necessary but still the trial Court had given a finding that the said section did not apply to the facts of the case as on the date of the suit no assessment had been made against the plaintiff. Accordingly, the trial Court dismissed the plaintiff's suit against all the defendants. 'The plaintiff has. therefore, filed the present appeal.
3. Mr. Desai, the Assistant Government Pleader, raised a preliminary contention that the plaintiff's appeal was not filed on proper Court fees. According to his contention the appeal should have been valued ad valorem under Schedule I. Article I of the Court Fees Act. The said article is a residuary article which provides that a plaint or a memorandum of appeal, not otherwise provided for in the Act, shall bear ad valorem court fees on the amount or value of the subject-matter. This being a residuary article, we have to consider whether there was any other provision in the Act which was applicable to the present memo of appeal.
4. Under Section 6(iv)(j) a residuary provision is made for declaratory suits to the effect that in suits where declaration is sought, with or without injunction or other consequential relief and the subject-matter in dispute is not susceptible of monetary evaluation and which are not otherwise provided for by the Act only thirty rupees court-fees shall be paid. Mr. Desai argued that that residuary clause will have no application to the present suit as the subject-matter in dispute was the amount staled in Schedules Exs. 1 to 4 to the plaint which came to a large figure of more than two lakhs and it could not be urged that the some was not susceptible of monetary evaluation. Mr. Desai in this connection strongly relied upon the decision of Raju J. in Fali Phirojshah v. Phirojsha Pestonji : AIR1963Guj207 . In that case the plaintiff had to file a suit for a declaration that Government securities worth two lakhs of rupees and odd. standing in the joint names of the defendant and the plaintiff were of his sole ownership and that he alone had a right to operate the account of the securities and for a consequential injunction. In that context Raju J. came to the conclusion that where the subject-matter of a suit consisted of Government securities of the fixed amount, it would be wrong to say that there was no standard of valuation of the subject-matter of the suit. It was. therefore, held that in that case the subject-matter was clearly one which it had a standard of valuation. That decision is clearly on a position which is exactly the converse of the one with which we are Concerned. There the plaintiff was seeking a declaration that he was the owner of the Government securities worth two lakhs and odd. In the present case, how-ever, the plaintiff is seeking a declaration that he is merely a Benamidar in the various suit transactions, mentioned in Exs. 1 to 4 in paras 8 to 10 of the plaint and that he is not interested in any manner whatsoever and that the defendants Nos. 1, 2 and 4 were the owners of those amounts and the accounts and that the plaintiff had no liability whatsoever in that connection. The plaintiff's claim, therefore, is not as to those amounts and such a claim on the basis that he has no interest whatsoever is not susceptible of any monetary evaluation. The plaintiff's suit was, therefore, clearly one which was covered under Section 6(iv)(j) of the Bombay Court-fees Act, 1959, which came into force when the appeal was filed and, therefore, the present appeal is on proper Court-fees. We, therefore, reject the preliminary contention raised by Mr. Desai.
5. Mr. Thakore strongly relied upon the accepted legal position of a Benamidar and argued that he is a person whose legal character has always been judicially recognised. Mr. Thakore in this connection relied upon the decision of the Supreme Court in Commissioner of Income-tax v. Abdul Rahim & Co. : 55ITR651(SC) In that case the Supreme Court relied upon the various Privy Council decisions and came to the conclusion that a Benamidar is a mere trustee of the real owner and he has no beneficial interest in the property or business of the real owner. But, in law, just as in the case of a trustee he can also enter into a partnership with others. His Benami character did not affect the Benamidar's capacity as partner or his relationship with the other members of the partnership. If a partner was only a Benamidar for another, it could only mean that he was accountable to the real owner for the profits earned by him and out of the partnership. Therefore, the benamidar of a partner, qua the other partners had separate and real existence and he was governed by the terms of the partnership deed. It was also held that if a Benamidar possessed the legal character to enter into a partnership with another, the fact that he was accounlable for his profits to, and bad the right to be indemnified for his losses by, a third party or even by one of the partners did not disgorge him of the said character. This decision was again approved by the Supreme Court in Commr. of Income-tax. Madras v. Bagyalakshmi & Co. : 55ITR660(SC) and it was observed 'a partner may be the Karla of a joint Hindu family, he may he a trustee, he may enter into a sub-partnership with others, he may under an agreement, express or implied, be the representative of a group of persons; he may he a Benamidar for another. In all such cases he occupied a duel position. Qua the partnership, he functioned in his personal capacity: qua the third parties in his representative capacity' If is well settled, from these two decisions that a Benamidar has a legal character and qua the third parties he enjoys a representative capacity. His position is legally recognised as that of a mere trustee of the real owner who has no beneficial interest in the properly or business of the real owner. In law, however, just as in the case of a trustee, he can enter into a partnership with others and qua third parties, perform all the acts in his representative capacity. When the Benamidar has such a legal character analogous to a trustee and he can enter into binding obligations and can create rights and liabilities in his capacity as such, it would not be open to contend that a Benamidar has no recognised legal character. The true connotation of the words 'legal character' in Section 42 of the Specific Relief Act has been examined in various decisions. In Ramakrishna v. Narayan, ILR 39 Mad 80: AIR 1916 Mad 584, the Division Bench of the Madras High Court consisting of Sadasiva Ayyar and Napier JJ. held that a man's legal character was the same thing as a man's status. A man's status or legal character, according to the learned Judges was constituted by the attributes which the law attached to him in his individual and personal capacity, the distinctive mark or dress, as it were with which the law clothed him apart from the attributes which might be said to belong to normal humanity in general. In that connection, the learned Judges mentioned that, according to Holland the chief variety of status among natural persons might be referred to the following causes: (1) Sex (2) minority (3) patria potestas, and manus (4) coverture (5) celibacy (6) mental detect (7) bodily defect (8) rank, caste and official position, (9) slavery (10) profession, (11) civil death, (12) illegitimacy, (13) heresay (14) foreign nationality, and (15) hostile nationality (See, Banerjee's Lectures on Specific Relief) It was also observed by the learned Judges that a declaration that a valid personal contract still subsisted between the plaintiff and the first defendant was not a right to declare a title to a legal character or a title to right to property. In that connection it was observed by the learned Judges that they had not been referred to any case in which any of the High Courts in India had given a declaratory relief in respect of right arising out of a contract which would affect only the pecuniary relationship between the parties to the contract and they did not think that there were exceptional circumstances in that case to lake it out of the ordinary rule. Thus, in that decision legal character has been equated to a man's status and the test laid down is whether apart from the attributes which belonged to normal humanity in general, does a person possess any distinctive attributes which the law attached to him. It was those distinctive attributes which gave him distinctive mark or dress, which constituted his legal character. In the present case it could not be doubted that the Benamidar who has in that capacity distinctive attributes, giving him special representative capacity and it distinctive character and position of a legal trustee has the legal character of his own. In the present case, it cannot be said that the plaintiff seeks to enforce a personal contract which could not be enforced except in exceptional circumstances. Those would be cases which were pointed and by the Supreme Court In S. Dutt v. University of Delhi AIR 1958 SC 1060. In that case an award declaring that the dismissal order had no effect on the status of Dr. Dutt and that he continued to be a professor of the University, was questioned on the ground that in substance and effect the award directed specific enforcement of a contract of personal service. In that case strong reliance was placed on the decision of the Judicial Committee in the High Commissioner for India v. I. M. Lall where the Judicial Committee had made a declaration that the purported dismissal of Mr. I. M. Lall was void and inoperative and he remained a member of the Civil Service. The Supreme Court distinguished that decision on the ground that the declaration in that case did not enforce a contract of personal service, but proceeded on the basis that dismissal could only be effected in terms of the statute and as that had not been done, it was a nullity from which the result followed that Dr. Dutt had continued in service. It was in terms held at page 1054 that all that the Judicial Committee did in that case was to make a declaration of a statutory invalidity of an act which was a thing entirely different from enforcing a contract of personal service. The Supreme Court in that case also approved the decision in Ram Kissendas v. Satya Charan. , where the Judicial Committee had maintained a declaration that a resolution of a company terminating appointment of its managing agents was void and in operative. The said decision was approved by the Supreme Court on the ground that in that ease the claim was not to enforce a claim of employment with an employer, but the suit was to prevent third persons interfering with the company's employees who were carrying out their contract of service with the company. In other words, it was not a suit to enforce a contract but a suit to prevent the procurement of a breach of contract, in which case there would be no bar of Section 21 of the Specific Relief Act. Thus, exception is made only in cases of such Government servants who have a guaranteed tenure of office and who have a right to hold office, or in cases where there is a mandatory statutory obligation on statutory bodies which if not performed, results in the act of the statutory bodies becoming null and void on the doctrine of ultra vires, in which cases alone, notwithstanding the termination of the contract of service, the person concerned would continue to remain in service. The ordinary-rule otherwise would be that a service contract with the straight relationship of a master and servant could not be enforced. It was on this ground that the observations have been made by the learned Judges of the Madras High Court that rights arising from mere contracts should not be enforced by declaratory suits. The same expression 'legal character' has been given a wider connotation by the Full Bench of the Calcutta High Court in Noor Jahan Begum v. Eugene Tiscenko : AIR1942Cal325 , where it was observed by Nasim Ali J. that the words 'legal character' in Section 42 were wide enough to include the status of a person. In order to entitle the plaintiff to bring a suit under Section 42, it was not necessary that the defendant should actually deny the plaintiff's legal character. If the claim which might be set up by the defendant is a hindrance to the plaintiff in the exercise of his or her rights or would expose him or her to liability if he or she disregarded it, be or she might come to Court for a declaration that the claim so set up by the defendant was not well founded. Even if we accept the ratio as laid down by the Madras High Court of equating the term 'legal character' with a man's status, the test would be fully satisfied so far as the present case is concerned. In Salmond on Juris prudence. 1957, Eleventh Edition, at page 292, Salmond has summarised different senses in which the term status is employed . Out of four meanings given by him. The first, which is the most comprehensive use of the term is to include in the man's status his whole position in the law the sum total of his legal lights, duties, liabilities, or other relations, whether proprietary or personal, or any particular group of them separately considered. It is in this sense that Salmond says that we speak of the status of a landowner, of a trustee, or an executor, of a solicitor, and so on. It is much more common, however, to confine the term in question in some particular description of legal condition some particular kind of status in this wide sense. Hence the other and specific meanings were given to the said term. Thereafter Salmond discusses the other meaning in the sense of a personal legal condition so far as a man's personal rights and burdens are concerned to the exclusion of his proprietary relations. As fur example, personal status of a free man. of a citizen, of a husband, of a father etc or the status of an alien, a lunatic, or an infant, but not of a landowner or a trustee. Thus, the status of a trustee is distinguished only in reference to the usage of the term in connection with a personal status as distinguished from other proprietary relations. It would not be possible for us to accept the contention that in the context of Section 42 which provides that any person entitled to any legal character or to any right as to any properly may institute a suit against any person denying or interested to deny his title to such character or right, this sense of the word 'status' which covers a 'trustee' would have to be excluded. In Chapsey v. Jethabhai : (1907)9BOMLR514 , Chandavarkar J. had in terms held at page 525 that where the legal character of a person as a trustee was denied, he was entitled, according to Section 42 of the Specific, Relief Act, to institute a suit against any person denying such character. On the same reasoning as that of a trustee, it is apparent that a Benamidar who occupies a similar representative position has the legal character which would entitle him to file a suit under Section 42 of the Specific Relief Act against any person who denies such legal character of a Benamidnr.
6. Mr. Karlekar, however, strongly relied on the decision in Shanta Shamsher v. Kamani Bros Ltd., by Mody J. in : AIR1959Bom201 . In that case one of the joint managing trustees had filed a suit against the company and his co-directors for a declaration that the resolution of the Board of Directors was ultra vires the Board of Directors and was inoperative and that he continued to be the joint managing director and, therefore, entitled to act as such in exercise of rights and powers to carry out all duties assigned to him as such managing director Mody J. in terms approved the decision in ILR 39 Mad 80: AIR 1915 Mad 584 of the Madias High Court which we have already referred to. Even though it was observed at page 1033 (of Bom LR): (at p. 209 of AIR) as regards the decision of Chandavarkar J. in : (1907)9BOMLR514 that in the said decision there was no discussion as to what was the meaning of 'legal character' or as to why the trusteeship was legal character, the same view has not been disapproved and in fact at page 1030 (of Bom LR): (at p. 207 of AIR) it was observed that Mr. Bhatt was not able to point out in any detail how far the position of the plaintiff as a joint managing director was analogous to that of a trustee under the circumstances of that case. At page 1038 (of Bom LR): (at p 212 of AIR) the decision seems to proceed on the basis of the special facts of that case It was pointed out that a managing director had only the rights and powers which were entrusted to him and the personality of the managing director had no peculiarity unconnected with or independent of his said right or power as a managing director which he could have enforced against the company and his co-directors. It was also held that he had not in those circumstances any rank or official position as contemplated in the illustration given by Holland so as to have any right of office apart from the particular entrustment of the functions to him. On that basis it was held that such a managing director had no legal character under Section 42. Mr Karlekar strongly relied upon the observations at page 1039 (of Bom LR): (at p 213 of AIR) where it was held that on the general test mentioned it was clear that where rights were claimed under a contract the same would not amount to legal character under Section 42. That decision proceeded on its own special facts and the question has not been considered whether a declaration of a statutory invalidity of an act could be made as laid down by the Supreme Court in Dr. Dutt's case already referred to by us The case was treated as one of enforcing a personal service contract apart from, any exceptional circumstances and as apart from entrustment of a particular function the person concerned had no legal character as such, the said conclusion was arrived at. The said decision could have hardly any application to the facts of the present case. A Benamidar's position is well recognised in law and he enjoys a distinct legal character and has the attributes in his representative capacity which would constitute his own legal character which when dented would always furnish him with a cause of action to file a declaratory suit. The lower court was therefore, clearly wrong in holding that a Benamidar could not maintain a suit for declaration of his legal character when his status as such was denied.
7. Mr. Karlekar has also argued that the proviso to Section 42 would in any case bar the suit of the plaintiff as no consequential relief had been sought, except for the mere declaration that the plaintiff was a Benamidar. We can-not agree with Mr. Karlekar in this connection. The plaintiff's right and character as a Benamidar having been denied, he was entitled to file a suit against a person denying the character for a declaration that he was a Benamidar. It is only in consequence of that declaration that in para 21 (d) he had sought a further relief that the plaintiff would not be liable for any tax or other liability in that connection and for the consequential injunction in para 21 (g) That was merely a consequential relief between the said parties inter se in pursuance of the declaration that in respect of the transactions mentioned in the suit, the plaintiff was a Benamidar. That relief, however, could not affect the right of the Income-tax Officers to assess the plaintiff in accordance with the provisions of the Act. There was no question of the application of the proviso to Section 42 so as to bar such a suit of the plaintiff as no other consequential relief could be sought.
8. Mr. Desai, however, took up the other contention, which was not necessary for the trial Court to go into, in view of its finding on the first question, as regards the bar of Section 67 of the Act, Section 67 provides as under:
'No suit shall be brought in any Civil Court to set aside or modify any assessment made under this Act. and no prosecution, suit or other proceeding shall lie against any officer of the Government for anything in good faith done or intended to be done under this Act'
This section consists of two parts By the first part Civil Court's jurisdiction is excluded to the extent that it cannot set aside or modify any assessment which has been made under the Act. As the Income-tax Act creates its own liability it has set up a hierarchy of its tribunals and has provided a right or remedy for the concerned assessees to challenge the assessment in the manner laid down by the Act and to that extent the civil Court's jurisdiction is excluded for challenging any assessment made under the Act. The two necessary conditions for the application of Part 1 of Section 67 are (l) that the assessment must have been made and (2) it must have been made under the Act This part of Section 67 would, therefore apply to cases where assessments have been completed and are sought to be modified or reopened Secondly, it would apply to cases where assessment has been made under the Act or in pursuance of the provisions of the Act and not in contravention of the provisions of the Act or ultra vires the Act or in other word de hors the Act and, therefore, outside the scope of the Act. Mr. Thakore is, therefore, right in contending that as in the present case the assessment proceedings were not completed and no assessment had been made under the Act, the first part of Section 67 would have no application. In this connection he also relied upon the decision of the Supreme Court in State of Tripura v. East Bengal AIR 1961 SC 23, where the majority view on a similar section viz. Section 65 of the Bengal Agricultural Income-tax Act, which also barred suits in civil Courts to set aside or modify any assessment made under the Act, was interpreted to mean that it would not exclude a suit where no assessment had been made when the suit was instituted. At page 28 the Supreme Court distinguished the decision of the Privy Council in Raleigh Investment Co. Ltd. v. Governor General in Council AIR 1947 PC 78, where the claim was of repayment of the lax alleged to have been wrongly levied under the colour of an ultra vires provision in the Indian Income-tax Act, after the assessment was completed. II was held that in the case before the Supreme Court where the taxing authorities sought to lax the agricultural income of the ruler of an Indian State, the wrongful act complained of was subjecting the plaintiff to harassment and trouble by commencing against him an illegal and unauthorised assessment proceeding which might eventually result in an unlawful imposition and levy of tax. It was there held that such a suit was maintainable in a civil Court. According to this majority view the second par! of Section 67 could not come into play as the relief claimed was that the assessment proceedings were ultra vires, void and outside the scope of the Act. It is, therefore, now well settled that the first part of Section 67 applies in such cases where the assessment has been made and, therefore, Mr. Thakore is right in contending that the first part of Section 67 could not apply to the facts of the present case
9. As regards the second part of Section 67, it bars any suit or other proceedings against any officer of the Government for anything in good faith done or intended to be done under the Act. Mr. Thakore argued that if the first part did not apply, the second part also could not apply as it was only giving a personal immunity and no immunity was given to the action of the Income-tax Officer. He further contended that in any case the Union of India could not have any immunity under the second part of Section 67. The two necessary conditions for the application of the second part are; (1) that the action complained of must have been taken or intended to be taken in good faith, and (2) it must he an act done or intended to he done under the act It is nowhere alleged in the plaint that the proceedings which are pending before the Income-tax Officers, defendants Nos. 5 to 8, have not been taken in good faith or that they could not be instituted under the Act Such a suit, therefore, where an injunction is sought against the Income-tax Officers who are in good faith proceeding with the assessment proceedings in accordance with the provisions of the Act, would be clearly barred under the second part of Section 67 of the Act. Mr. Thakore strongly relied upon the aforesaid decision in the case of : 19ITR132(SC) That decision would not help him because in that case the assessment proceedings against a ruler of an Indian State were ultra vires and without jurisdiction and were clearly outside the scope of the Act. In that case the bar under the second part of Section 67 could not naturally operate. That analogy cannot be invoked in so far as the present case is concerned as what the plaintiff seeks to prevent is bona fide activities of the taxing officers carried on under the provisions of the Act in assessing the plaintiff. In this connection it would be pertinent to note the observations of Fazl Ali J. in the same case of Slate of Tripura : 19ITR132(SC) in the dissenting judgment. The majority had no occasion to deal with the second part in view of the finding that what was challenged was the assessment proceeding which was beyond the scope of the Act The said second part. therefore. came for interpretation only in the dissenting judgment At page 36 Fazl Ali J. observed as under:
'The latter part of the section (Section 65 of the Bengal Act which was in identical terms) clearly excludes the jurisdiction of the Court to prevent the Income-tax Officer from proceeding with an assessment which has already been started. Reference may here be made to Secretary of State v. Mayappa Chettiar : 4ITR341(Mad) where it was held that the expression 'intended to be done' signified futurity so as to preclude suits for injunction in respect of proceedings 'intended' to be taken by the Income-tax Officer. It is true that in terms the provision concerns the Income-tax Officer only, but it could hardly have been the intention of the Legislature that though that Officer is not liable to be restrained from proceeding with an assessment, the provision which ensures such a result may be rendered nugatory by permitting an injunction to be claimed against the Provincial Government or the State. In my opinion, it will be a strange construction of the section to hold that although if bars suits to modify or set aside an assessment and though it bars all proceedings to restrain the officer who is making the assessment from proceeding with it, yet it leaves it open to a party to stop an assessment by claiming an injunction against the Provincial Government or the State instead of the Officer concerned. There is no reference at all in the first or the second part of the section, but the section as a whole concerns only with excluding the Jurisdiction of the civil Court in regard to certain acts done or intended to be done in connection with the assessment of agricultural income-tax, and on a fair construction if must be, held to bar all suits in connection with such assessment'
In the present case the action of the Income-tax Officer has not been challenged as outside the scope of the Act or as being not in good faith undertaken. Those observations of Fazl Ali J. would equally apply to the facts of the present case and would furnish a complete answer to Mr. Thakore's objections. There is equally no substance in the contention that the latter part only gives a personal immunity to the officer as the same is qua the actual or intended activity of the officer concerned and so long as the said activity remains within the scope of the Act and is not out-side its scope, there is a complete immunity and to that extent the civil Court's jurisdiction is completely excluded. Even otherwise the plaintiff had in fact made no claim against defendant No. 9, the Union of India. Even the statutory notice under Section 80 has been stated in the plaint para 20 to have been served only on defendants Nos. 5 to 8 who were originally joined in the suit. It was only after the order of the trial Court that defendant No. 9 was sought to be added and no cause of action whatever had been alleged. In fact the plaintiff's only cause of action against defendant No. 9 would be that defendant No. 9 should not give any effect to any assessment that might be made by its officers. In sub-stance and effect such a relief would be clearly seeking to reopen the competent assessment which would be made by the Income-lax Officers and which could not be restrained by reason of the second part of Section 67. The plaintiff, therefore, could not file a suit to get such reliefs which are mentioned in paras (f) and (g) of the petition either against the Income-tax Officer or against the Union of India and the suit is clearly barred by Section 67 of the Act.
10. In the result, the decree of the trial Court is confirmed in so far as defendants Nos. 5 to 9 are concerned while the decree is set aside in so far as defendants Nos. 1 to 4 are concerned. The appeal is accordingly allowed only in so far as defendants Nos. 1 to 4 are concerned and the decree of the trial Court against the defendants 1 to 4 is set aside and the matter shall go back to the lower Court for disposal in accordance with the law. As a long time has elapsed, the matter shall be heard from day to-day and finished as expeditiously as possible. The appeal of the plaintiff is dismissed against defendants Nos. 8 to 9 with costs all throughout. Defendants Nos. 1 to 4 to pay the costs of the plaintiff in this appeal.