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Commissioner of Income-tax Vs. His Highness Maharaja Shri Sawai Man Singh of Jaipur (Deceased) Represented by His Highness Maharaja Sawai Bhawani Singh of Jaipur - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Income-tax Case No. 28 of 1966 and S.B. Civil Income-tax Case No. 42 of 1966
Judge
Reported in[1973]89ITR123(Raj); 1972()WLN33
ActsIncome Tax Act, 1922 - Sections 66(1) and 66(2); Code of Civil Procedure (CPC) , 1908 - Sections 141 - Order 22
AppellantCommissioner of Income-tax
RespondentHis Highness Maharaja Shri Sawai Man Singh of Jaipur (Deceased) Represented by His Highness Maharaja
Appellant Advocate Sumer Chand Bhandari, Adv.
Respondent Advocate H.P. Gupta, Adv.
Cases ReferredIn Seth Premchand Satramdas v. State of Bihar
Excerpt:
income tax act, 1922 - section 66(2) and civil procedure code--section 141 & order 22--assessee died during pendency of reference--whether reference abates. (no);order 22 of the civil procedure code not having been made applicable and there being nothing either in the income tax act or the rules framed thereunder, it cannot be urged that the reference has abated by reason of the fact that the assessee has died.;the main reason to our mind why it has been held that a pending reference under section 66(1) does not abate is that the high court does not exercise either original or appellate jurisdiction, in this matter, but exercises advisory or consultative jurisdiction. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile..........act, 1922, is an original civil proceeding within the meaning of section 141 of the code of civil procedure and the provisions of the code including those contained in order 22 are applicable. section 141 runs as follows : ' 141. miscellaneous proceedings.--the procedure provided in this code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. ' 2. in thakur pershad v. sheikh fakir-ullah, [1894] l.r. 22 i.a. 44 ; i.l.r. 17 all. 106, 108 (p.c.), their lordships of the privy council observed as follows : ' their lordships think that the proceedings spoken of in section 647 (of the code of 1877), include original matters in the nature of suits such as proceedings in probates, guardianships, and so forth,.....
Judgment:

Jagat Narayan, C.J.

1. These applications under Section 66(2) of the Indian Income-tax Act, 1922, were filed by the Commissioner of Income-tax, Rajasthan, in this court on January 18, 1966, and March 30, 1966, respectively, against His Highness Maharaja Shri Sawai Man Singh of Jaipur. During the pendency of the applications the respondent died on June 24, 1970. Applications for substituting his son and successor His Highness Maharaja Shri Sawai Bhawani Singh of Jaipur were filed on March 17, 1971. Notices were issued to the latter who has taken an objection that the applications have abated. The contention on behalf of His Highness Maharaja Shri Sawai Bhawani Singh is that anapplication filed to the High Court under Section 66(2) of the Indian Income-tax Act, 1922, is an original civil proceeding within the meaning of Section 141 of the Code of Civil Procedure and the provisions of the Code including those contained in Order 22 are applicable. Section 141 runs as follows :

' 141. Miscellaneous proceedings.--The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. '

2. In Thakur Pershad v. Sheikh Fakir-Ullah, [1894] L.R. 22 I.A. 44 ; I.L.R. 17 All. 106, 108 (P.C.), their Lordships of the Privy Council observed as follows :

' Their Lordships think that the proceedings spoken of in Section 647 (of the Code of 1877), include original matters in the nature of suits such as proceedings in probates, guardianships, and so forth, and do not include executions. '

3. Order 22, in terms, applies to suits and appeals. Most of the High Courts took the view that Section 141, Civil Procedure Code, only applies to such proceedings as are in pari materia with suits and thus original in character. It was on this basis that it has been held that Order 22 is not applicable to revision applications under Section 115, Civil Procedure Code.

4. Our attention has been drawn to an obiter observation made by their Lordships of the Supreme Court in Ram Chandra Aggarwal v. State of U.P., A.I.R. 1966 S.C. 1888, 1891. (3) A.I.R. 1962 S.C. 903, to the following effect:

' Similarly recently this court has held in Munshi Ram v. Banwari Lal, A.I.R. 1962 S.C. 903 that under Section 41 of the Arbitration Act and also under Section 141, Civil Procedure Code, it was competent to the court before which an award made by an arbitration tribunal is filed for passing a decree in terms thereof to permit parties to compromise their dispute under Order XXIII, Rule 3, Civil Procedure Code. Though there is' no discussion, this court has acted upon the view that the expression ' civil proceeding ' in Section 141 is not necessarily confined to an original proceeding like a suit or an application for appointment of a guardian, etc., but that it applies also to a proceeding which is not an original proceeding. '

5. There is abundant authority for the proposition that a pending reference under Section 66(1) of the Income-tax Act does not abate. Reference may be made to the following decisions in this connection :

Maharajadhiraja of Darbhanga v. Commissioner of Income-tax, A.I.R. 1930 Pat. 81 (S.B.), Commissioner of Income-tax v. I. D. Varshani, [1953] 23 I.T.R. 163 (All.), Commissioner of Income-tax v. Gutam Hyderkhan, [1962] 46 I.T.R. 463 (A.P.) and Commissioner of Income-tax v. Gourishankar Lal Singha, [1967] 63 I.T.R. 711 (Cal.).

6. The above decisions proceed on the ground that Order 22 of the Code of Civil Procedure has not been made applicable to a reference under Section 66 of the Indian Income-tax Act, 1922. Section 37 of the Income-tax Act makes portions of the Code of Civil Procedure applicable to proceedings before the Income-tax Officers. He has been given the right to enforce the attendance of any person and examine him on oath. He has also been given the right to compel the production of any document. He can also issue commissions for examination of witnesses, etc. The same powers have been granted also to the Appellate Assistant Commissioner and the Tribunal. How a reference is to be dealt with after it is made under Section 66 is provided for in Sections 66(5) and 66A(1) of the Income-tax Act and all that they provide is that a reference shall be heard by a Bench of not less than two judges. It may be said that since the sections provide for a hearing, it is expected that the court would before passing final orders on the reference inform the parties interested and hear them if they so desire. Order 22 of the Civil Procedure Code not having been made applicable and there being nothing either in the Income-tax Act or the Rules framed thereunder, it cannot be urged that the reference has abated by reason of the fact that the assessee has died. Articles 176 and 177 of the Limitation Act apply to the legal representatives of a deceased plaintiff or a deceased defendant, or the legal representatives of a deceased appellant or a deceased respondent. Even these two articles cannot be said to be specifically applicable to an income-tax reference under Section 66. In the Calcutta case, referred to above it was also stated that with regard to references under the Indian Income-tax Act, 1922, the basic principle is that once a case has been stated to the High Court, the court is bound to answer the question and the proceedings cannot be stopped simply because of the death or absence of one of the parties interested before it. The main reason to our mind why it has been held that a pending reference under Section 66(1) does not abate is that the High Court does not exercise either original or appellate jurisdiction in this matter, but exercises advisory or consultative jurisdiction.

7. An application under Section 66(2) asking the court to direct the Tribunal to state the case and refer questions of law to it is also an application invoking the court to exercise its advisory jurisdiction. In Seth Premchand Satramdas v. State of Bihar, [1951] 19 I.T.R. 108; [1950] S.C.R, 799 ; [1950] 1 S.T.C. 313 (S.C.), an appeal was filed before the Federal Court against an order of the Patna High Court dismissing an application under Section 21(3) of the Bihar Sales Tax Act, 1944, for directing the Board of Revenue, Bihar, to state a case and refer it to the High Court. Section 21 of the Bihar Sales Tax Act, 1944, is similar to Section 66 of the Indian Income-tax Act, 1922. It was held by their Lordships of the Supreme Court that the order of the Patna High Court was not an order passed by the High Court in the exercise of either its appellate or original jurisdiction, but that the jurisdiction of the High Court in the matter was only consultative.

8. We are accordingly of the opinion that the present applications under Section 66(2) of the Income-tax Act are not civil proceedings within the meaning of Section 141, Civil Procedure Code. Order 22 of the Code of Civil Procedure is therefore not applicable and the applications have not abated.

9. Let the substitution prayed for be made.


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