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M. Chettiappan and Another Vs. Income-tax Officer, Karaikudi, and Another. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberRAMAMURTI J - These applications have been filed for the grant of a certificate under article 132(1)
Reported in[1964]54ITR293(Mad)
AppellantM. Chettiappan and Another
Respondentincome-tax Officer, Karaikudi, and Another.
Cases ReferredChunilal V. Mehta & Sons Ltd. v. Century Spinning
Excerpt:
s.c.ps.nos. 44 of 1964 - - the petitioner now prays for the issue of a certificate claiming that the case satisfied the requirements of articles 132(1) and 133 of the constitution on behalf of the department the objection is raised that no certificate under article 133 can be granted as the writ proceedings arise out of revenue proceedings and do enot rebate to any civil proceeding within the meaning of article 133. it is objected that under article 132(1) no certificate can be granted as the case does not involve a substantial question of law as to the interpretation of the constitution. veeraswami nadar as well as by reason of the recent decision of the supreme court in state of ultra pradesh v. on a careful examination of the two decisions aforesaid, we are clearly of the opinion.....the aforesaid write petitions were filed under article 226 of the constitution for the issue of writs of prohibition or other appropriate writs or orders restraining the respondent, the income-tax officer, karaikudi, from enforcing the collection of arrears if income-tax due, about rs. 19.5 lakhs, from the petitioner for the assessment year 1952-53 to 1956-57. the income-tax officer treated the petitioner as the principal officer of the association of persons under section 2 of the indian income-tax act, and assessed him in such capacity. there were appeals to the assistant commissioner and to be appellate tribunal thereafter. there were also proceedings before the high court on a reference under section 66(1) of the indian income-tax act. the result of these proceedings was that it was.....
Judgment:

The aforesaid write petitions were filed under article 226 of the Constitution for the issue of writs of prohibition or other appropriate writs or orders restraining the respondent, the Income-tax Officer, Karaikudi, from enforcing the collection of arrears if income-tax due, about Rs. 19.5 Lakhs, from the petitioner for the assessment year 1952-53 to 1956-57. The Income-tax Officer treated the petitioner as the principal officer of the association of persons under section 2 of the Indian Income-tax Act, and assessed him in such capacity. There were appeals to the Assistant Commissioner and to be Appellate Tribunal thereafter. There were also proceedings before the High Court on a reference under section 66(1) of the Indian Income-tax Act. The result of these proceedings was that it was held that the assessment proceedings for the assessment years 1952-53 to 1956-57 treating the petitioner as the principal officer of the association of persons under section 3 of the Indian Income-tax Act were valid. After the termination if the reference in this court the department has been making several attempts to collect the arrears of income-tax due from the petitioner but without any result.

The petitioner thereafter filed the writ petitions aforesaid on the ground that section 3 of the Indian Income-tax Act has conferred an unguided and arbitrary power on the Income-tax to assess the same income either on the association as such, or the members thereof individually at his sweet will and pleasure, and that the said provision offends article 14 of the constitution. The main complaint of the petitioner was that 7 under section 3 the officer was clothed with such uncontrolled and unregulated powers which at the sweet will and caprice of the department can be successfully used to discriminate between associations and members thereof similarly situated. A Bench of this court of which one of us was a member dismissed the writ petitions holding that the charging section, section 3 of the Act, does not offend article 14 of the Constitution, and it has not conferred any such arbitrary or despotic power on the department as contended by the petitioner. The petitioner now prays for the issue of a certificate claiming that the case satisfied the requirements of articles 132(1) and 133 of the Constitution

On behalf of the department the objection is raised that no certificate under article 133 can be granted as the writ proceedings arise out of revenue proceedings and do not rebate to any civil proceeding within the meaning of article 133. It is objected that under article 132(1) no certificate can be granted as the case does not involve a substantial question of law as to the interpretation of the Constitution.

We shall first take up the question as how far the petitions satisfy the requirements of article 133. The question as to whether proceeding in relation to the assessment, levy and collection of income-tax or other tax from as assessee would amount to a civil proceedings within the meaning of article 133 of the constitution has come up for consideration before the several High Courts and the preponderance of opinion is that these proceedings cannot be said to be civil proceedings within the meaning of article 133 of the Constitution. In a recent judgment of a Bench of this court, of which one of us was a member, First Additional Income-tax Officer v. R. Shanmugha Rajeswara Sethupathi, the scope of article 133 in an identical situation was considered and on a consideration of the relevant case law it was held that the meaning of article 133. We may also add that subsequent to this Bench decision of this court, a Bench of the Bombay High Court in J. P. Sharma v. Phalton Sugar Works Ltd. has taken the same view, holding that the proceeding relation to the liability to pay income-tax partake the character of revenue proceedings and are not civil proceedings within the meaning of article 133 of the Constitution.

Learned counsel for the petitioner realising the binding mature of the bench decision of this court in First Additional Income-tax Officer v. R. Shanmugha Rajeswara Sethupathi, however, contended that this decision requires reconsideration in view of certain observations contained in a subsequent Full Bench decision of this court in Southern Roadways v. Veeraswami Nadar as well as by reason of the recent decision of the Supreme Court in State of Ultra Pradesh v. Vijay Anand. On a careful examination of the two decisions aforesaid, we are clearly of the opinion that the petitioner has not made out any case for a fresh consideration of the question which has already been decided by the Bench decision of this court referred to above.

Before dealing with the arguments of learned counsel for the petitioner it is necessary to set out the rationale and the precise scope of the decision in First Additional Income-tax v. R. Shanmuga Rajeswara Sethupathi.

1. Articles 132 to 136 of part V of the Constitution which deal with the jurisdiction and the powers of the Supreme Court have deliberately employed different language using different well-known expressions, civil proceeding, criminal proceedings, other proceedings, and any cause or matter. Article 133 is specifically confined to a judgment, decree or final order in a 'civil Proceeding' of a High Court while article 134 is confined to judgment final order to sentence in a criminal proceeding of a High Court. In striking contrast to this and in juxtaposition with civil and criminal proceeding article 132 takes within its ambit any judgment, decree or final order of a High Court, whether in a civil, criminal or other proceeding. The words 'other proceeding' which are words of wide amplitude have been used in article 132 to include all proceedings other than a civil and criminal proceedings. The constitution has not adopted a simple classification of proceeding into two categories, civil and criminal as mutually exclusive and together exhaustive but has specially provided for a general category 'other proceedings'

2. All proceedings which are not criminal in nature are not necessarily civil proceedings within the meaning of article 133. The reliefs prayed for and the nature of the proceeding in which a judgment or final order is rendered by the High Court (in a proceeding under article 226) will govern and determine the category of the proceedings, as civil criminal or other proceeding.

3. Any matter that is brought before the High Court invoking the exercise of its jurisdiction under article 226 of the Constitution cannot be regarded as a civil proceeding.

4. The liability to income-tax is not a civil right nor are proceeding for assessment proceedings relating to a civil right. They are not civil proceeding but essentially they partake of the character of revenue proceedings.

Before we proceed further it is necessary to refer to the object underlying the wide power conferred on the Court under the article 132. proceedings which involve a substantial question of law as to the interpretation of the Constitution are placed by the Constitution in a special category irrespective of the nature of the proceedings in which they arise and a right of appeal to the Supreme Court of the widest amplitude is allowed in cases involving such questions. The main object under laying article 132 is that the final authority of interpreting the Constitution must rest with the Supreme Court whatever the nature of the suit or proceeding in which such question may arise and whether it is a judgment of a single judge or of more judges. With the same idea an enlarged definition of the expression 'final order' is given in article 132 in the explanations appended thereto, significantly different from articles 133 and 134. In this connection we may reefer to the following observations of Patanjali Sastri C.J. in Election Commission v. Saka Venkata Subba Rao at page 212 :

'If the respondents contention were accepted, not only would article 132 become redundant so far as it relates to civil proceedings, but the object of the Explanation to that article, which was designed to supersede the decision of the Federal Court in S. Kuppuswami Rao v. King and thus secure a speedy determinations of constitutional issues going to the root of a case, would be defeated, as the Explanation is not made applicable to the same expressions 'final order' used in article 133(1). The whole scheme of the appellate jurisdiction of the Supreme Court clearly indicates that questions relation to the interpretation of the constitution are placed in a special category irrespective of the nature of the proceedings in which they may arise, and a right of appeal to the widest amplitude is allowed in cases involving such questions.'

In this setting we shall now consider whether there is anything in the decision, Southern Roadways v. Veeraswami Nadar which detracts in any manner from the correctness of the principle enunciated in First Additional Income-tax Officer v. R. Shanmugha Rajeswara Sethupathi. In that case the petitioner failed to secure a stage carriage permit before the regional Transport Authority. The propriety of the grant was challenged by the other side in an application under article 226 of the Constitution but without success. But in an appeals arising therefrom the respondent succeeded and a writ was issued quashing the order of the Appellate Tribunal. The question arose whether the petitioner was entitled to a certificate to appeal to the Supreme Court against the order quashing the order of the Appellate Tribunal. The point was raised as to whether an order passed under article 226 which has the effect of either reviving or living the entire controversy before the inferior tribunal (in this case the State Transport Appellate Tribunal) for fresh consideration or adjudication can be regarded as a judgment or final order under article 133 of the Constitution. The argument against the grant of a certificate was that the order in question was not a final order, that the order of the High Court was in the nature of an interlocutory judgment and has not the effect of disposing of all matters in controversy, and that it essentially partook the character of an order of remand. This argument was repelled by the Full Bench and it was held that an order in an application under article 226 whether it quashed the order of the inferior Tribunal or not, will be a judgment or final order within the meaning of article 133 for the purpose of an appeal to the Supreme Court as it is a final and complete adjudication of all matters in controversy in the writ proceedings. While reaching this conclusion the Full Bench had to consider the precise nature and character of the proceedings are original in nature and not in the exercise of the appellate or revisional jurisdiction. It was pointed out by the Full Bench that (i) the subject-matter of a petition under article 226 will be entirely different from the matters in controversy agitated before the inferior Tribunal, the former relation to vindications of a constitutional right; (ii) the merits of the controversy in the proceedings cannot be equated to the controversy regarding the rights or privileges asserted or claimed before the inferior Tribunal; (iii) the only question in the writ proceedings will be whether the fundamental right of the party has been infringed or whether the order of the tribunal, is outside the authority conferred on it by the statute the proceedings before the High Court under article 226 are independent proceedings and not a continuation of the original proceedings before the statutory authority.

Relying upon the aforesaid grounds of reasoning of the Full Bench Mr. M. K. Nambyar, learned counsel for the petitioner, contended that the mere fact that the proceedings before the assessment authorities related to the assessment, collection of revenue (income-tax) and therefore revenue proceeding is not conclusive of the question to hold that the subsequent proceeding under article 226 are not civil proceedings but only revenue proceedings. He urged that in the proceedings under article 226, in the instant case, the subject-matter in dispute relates to the denial of infringement of a fundamental right granted under article 14 of the Constitution, and that a right to obtain the issue of a wait for upholding this valuable constitutional right is distinct from the subject-matter of the controversy before the revenue authorities and, having regard to the nature of the right asserted and the relief sought for, the proceeding is essentially a civil proceedings. We might as well extract the following observation in the Full Bench judgment on which strong reliance was placed by the learned counsel :

'That principle cannot apply to proceedings under article 226 of the constitution which are original in nature and founded on rights of parties aggrieved, with a view to keep the orders of statutory tribunals within the bounds of law. To put it differently, the subject-matter of a petition under section 226 will be entirely different from the matters in controversy agitated before the inferior tribunal, the former relation to the vindication of a constitutional right. The merits of the controversy in proceedings under article 226 cannot, therefore, be equated to the controversy regarding the rights or privileges asserted to claimed before the inferior tribunal, whose order is sought to be quashed in those proceedings the only question in the writ proceedings will be whether a fundamental right of the party has been infringed or whether the order of the tribunal is outside the authority conferred on it by the statute....A right to obtain a writ is a valuable constitutional right given to an aggrieved party, the issue thereof being regulated by certain well-accepted principles. That right is, as we said, distinct from the own which can form the subject-matter of controversy before the Tribunal. The superior court cannot adjudicate on the matter entrusted for adjudication by the Tribunal under the statute, except for the limited purpose of seeing whether a writ should or should not issue. It goes without saying that the tribunal will have no jurisdictions like the one conferred on the High Court under article 226 of the Constitution.'

We are of opinion that there is no force in the points raised by learned counsel for the petitioner as they proceed upon an incorrect appreciation and understanding of the observations of the Full Bench divorced from their proper context. At the outset it must be pointed out that it was conceded before the Full Bench that a proceeding under article 226 of the Constitution touching the grant of a stage-carriage permit under the Motor Vehicles Act is a civil proceeding under article 135 of and the Full Bench had to consider the short and the only question; 'Whether the order of the High Court amounts to a judgment or a final order within the meaning of article 133 ?' The observations relied upon by learned counsel were made by the Full Bench only with a view to emphasis that the order in question was not analogous to a remand order, and that the jurisdiction under article 226 is an independent original jurisdiction, and that when the writ petition is disposed of either by the issue of a writ or by refusing to issue the writ, the proceedings before the High Court are final and complete. In that connection, it was pointed out that the result of the quashing of the order, namely, the restoration of the proceedings before the tribunal was not by any order of demand, but was merely the consequence of the order of the tribunal having been quashed. It is while emphasising this concept that it was observed by the Full Bench that the subject-matter of a petition under article 226 will be entirely different from the matters in controversy urged before the inferior tribunal, and that the proceedings before the High Court cannot be equated to the controversy of the subject-matter in dispute before the inferior tribunal.

We are clearly of the opinion that this Full Bench decision is not authority for the position that if a proceedings before the inferior tribunal is some proceedings other than a civil proceeding (in the instant case a revenue proceeding) the proceeding under article 226 in which relief is specifically sought with regard to the revenue proceeding before the inferior tribunal should be regarded as a civil proceeding merely the character of the proceeding under article 226, will have to be determined with due regard to the nature of the relief which was asked for and granted or refused. In our opinion, the proceeding under article 226 will necessarily take its colour from the nature of the original proceedings before the inferior tribunal. There are several kinds of jurisdiction which have been vested in the inferior tribunal under a variety of special legislations and in these cases the party aggrieved can invoke the jurisdiction of the High Court under article 226 on the ground that there is an infringement of a fundamental right or excess of jurisdiction. According to the argument of learned counsel all these proceedings must be held to be civil proceedings merely because the complaint is the infringement of a fundamental right.

There is no foundation for the view that civil and criminal jurisdiction exhaust the list of jurisdiction that are conferred upon the High Court by the Constitution and under the Letters Patent. There can be a proceeding which is neither civil not criminal and whether a particular writ application is in the nature of a civil proceeding or criminal proceeding or other proceeding will depend upon the facts of each case, and no uniform rule can be formulated in the nature of things.

We are of the opinion that the real test is the character of the proceedings themselves (before the inferior tribunal) which are the subject-matter of the particular application under article 226 whatever it be, that constitution the proceedings as civil, original or other proceedings. For the application of this test, it makes no differences whatsoever, whether the application under article 226 is either for the issue of a writ of prohibition or a writ of certiorari or a writ of mandamus. The quality and matter of an application for the writ must be decided according to the subject-matter dealt with in that application, and how in its ultimate effect it would react upon and affect the proceedings before the inferior tribunal.

Ample support for this view is found in several decisions in England in which section 47 of the English Judicature Act of 1873, Which prohibited an appeal from any judgment of the High Court in any criminal cause or matter came up for consideration. The leading decision is Queen v. Fletcher. In that case the Queens Bench Division dismissed an application for the issue of writ of certiorari to bring up, for the purpose of quashing it, a summary conviction by Justices of the Peace for trespass in pursuit of game. An appeal was preferred from the decision of the Queens Bench Division and a preliminary objection as to the competency of the appeal was raised on the ground that the dismissal of the application for, the issue of a writ of certiorari by the Queens Bench Division was a judgment in a criminal cause or matter within the last clause of section 47 of the Judicature Act of 1873. The argument in support of the maintainability of the appeal was that the application for the writ of certiorari was not a criminal proceedings but was merely a proceedings taken in that court to quash the conviction. It was held that it was a proceeding in a criminal matter before the Queens Bench Division although not commenced there. Brett J. A. expressed the matter thus at pages 46-47.

'There has been a conviction in a criminal matter by justices, and a motion in the Queens Bench Division for a certiorari for the purpose of determining whether that conviction is good or ought to be quashed and the queen Bench has determined, by discharging the rule for a certiorari that the conviction ought to stand in other words, the court has affirmed a loss to see what it is. It is in effect a judgment or decision on the question whether a man shall be fined or imprisoned or not.'

Amphlett J.A. observed thus :

It is argued that this is really a civil proceeding for protecting the civil rights of a person who has a bona fide claim to be right of shooting. But that is not so, in substance as well as in form it is a criminal proceeding, If the man makes out prima facie, that he is setting up a bona fide claim of right, the justices ought to hold their hands; and if they proceed to hear and conviction notwithstanding the Queens Bench Division will grant a certiorari, even if certiorari is taken away in the particular case, because it is for the purpose of preventing the justices from proceeding without jurisdiction, and when it comes before the court purpose is not to determine the civil right, but to determine whether or not the magistrate had jurisdiction or whether, as it were, the plea to the jurisdiction was a valid plea. It is, therefore, a proceeding in a criminal matter to determine whether the conviction can be sustained, and consequently there is no appeal'.

The statement of the law in Queen v. Fletcher was followed and referred to with approval in Ex parte Alice Woodhall. In that case the Queens Bench Division dismissed an application for a writ of habeas corpus made on behalf of a person who was committed to prison under section 10 of the Extradition Act as a fugitive criminal accused of an extradition crime. It was held that the decision of the Queens Bench Division was given in a criminal cause or matter and by reason of section 47 of the Judicature Act, no appeal would lie to the Court of Appeal. Reference may be made to the following observations of Esher M.R. at page 836 :

'Was the decision of the queens Bench Division refusing the application for a writ of habeas corpus, a decision by way of the judicial determination of a question raised in or with regard to the proceedings before Sir James Ingham I am clearly of opinion that it was, and I think it is impossible to say that what took place before him was not a proceedings the subject-matter of which was criminal. If the proceeding before the magistrate was a proceedings the subject-matter of which was criminal, then the applications in the Queens Bench Division for the issue of a writ of habeas corpus, which if issued would enable the applicant to escape from the consequences of the proceedings before the magistrate, was a proceedings the subject-matter of which was criminal. It follows, therefore, that this court has no jurisdiction to hear the appeal. It does not follow that this court would have no jurisdiction to hear my appeal with respect to the granting or refusing of a writ of habeas corpus. If the subject-matter of the proceedings in respect of which the application was made was criminal, this court would have no jurisdiction to hear the appeal. If such subject-matter was not criminal, this court would have jurisdiction.'

The nature of the proceeding for a writ of mandamus before the Kings Bench Division came up for decision in R. v. Army Council Ex parte Sandford. In that case a writ of mandamus filled by the party aggrieved to command the army council to mitigate, remit or commute the sentence passed upon him was dismissed by the Kings Bench Division. While upholding the preliminary objection that the proceedings for the writ of mandamus is proceeding of a criminal nature, Slesser L.J. stated the law thus at page 375.

'It is a question of law, however, whether it is exercised civilly or criminally, and, if the right view be that the Tribunal is vested with criminal jurisdiction which is of a judicial or quasi-judicial nature, then any matter affecting the exercise of that jurisdiction by prerogative writ, mandamus, certiorari, or prohibition is similarly, on the authorities, a proceeding in a criminal cause or matter.'

It is unnecessary to refer to the other cases, and it is sufficient to refer to the decision of the House of Lords in Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government, as a similar objection regarding the nature of a writ proceeding was raised and overruled. In that case a Netherlands subject, who over-stayed in England for 14 years, was arrested as an absentee and taken before the magistrate with a view to his being handed over to the Netherlands military authorities. The Kings Bench Division dismissed an application for a writ of habeas corpus and the Court of Appeal dismissed the appeal on the ground that the order appealed from was in a criminal cause or matter. On a further appeal to the House of Lords, this view was upheld. It was held that the true nature and the character of the writ proceeding will have to be determined with reference to the nature and the character of the proceeding in respect of which the proceeding for the issue of a writ was instituted, and that if the direct outcome of the writ would vitally affect the proceeding before the inferior tribunal the character of that proceeding before the inferior tribunal will necessarily govern the character of the proceeding for the issue of a writ. (vide observations of Viscount Simon, Lord Chancellor, at page 156). We may usefully refer to the following statement of the law by Lord Porter at pages 163-164, as it directly deals with the point that an application for the issue of a writ was separate proceeding from the proceeding before the inferior tribunal :

'Was, then the application for the writ of habeas corpus in the present case made in a criminal cause or matter Certain principles have been consistently followed in coming to a conclusion on this question, and are now, I think too firmly established to be open to challenge. One such principle is that mandamus may be asked for either in a criminal or in a civil proceeding and in any given case it must be determined whether the proceeding is criminal or not. This does not mean that the matter, to be criminal, must be criminal throughout. It is enough if the proceeding in respect of which mandamus was asked is criminal, e.g. the recovery of a poor rate is not of itself a criminal matter, but its enforcement by magistrates by warrant of distress is, and if a case be stated by them as to their right so to enforce it and that cause is determined by the High Court, no appeal lies : see Seaman v. Burley. So, if the proceeding before the magistrate was a criminal proceeding the decision of the High Court on a writ of prohibition is a decision in a criminal matter, whether the magistrate had jurisdiction or not. He purported to be exercising criminal and not civil jurisdiction, and the decision of the High Court was given in that matter : see per Viscount Cave in In re Clifford and OSullivan. As long as 1888 it was unsuccessfully argued in Ex parte Woodhall, that the decision to be in a criminal cause or matter, must deal with what was a crime by English law and in the same case it was contended in vain that an application for habeas corpus was a separate proceeding from that which the magistrate dealt with in the case brought before him. That case has been consistently approved by the courts of this country, and I think at least once by your Lordships House : see Provincial Cinematograph Theatres Ltd. v. Newcastle-upon-Tyne Profiteering Committee.'

We may also refer to the discussion of this aspect of the matter in Halsbury, vol. II, 3rd edition, page 49, section 97, and page 92, section 152, in which there is a reference to the nature of the proceedings for the issue of a writ in the Kings Bench Division in varying contexts.

From the foregoing it will be clear that every application under article 226 of the Constitution cannot be deemed to be a civil proceeding merely because an infringement of a fundamental right under article 14 is complained of. The correct view is that a proceeding for the issue of a writ will be a 'civil proceeding' or a 'criminal proceeding' or 'other proceeding', according to the nature of the application and the questions raised and decided in the proceeding and how ultimately it reflects upon the proceeding before the inferior tribunal, or upon the rights of the aggrieved party. The same view has been taken by a Bench of this court in C. Dhanalakshmi v. Income-tax Officer.

We may also refer to a Bench decision of this court in Krishnaswami v. Council of the Institute of Chartered Accountants of India (Rajamannar C.J. and Venkatarama Aiyar J.) in which the question arose whether proceedings before the High Court against a chartered accountant under section 21(2) of the Chartered Accountants Act, 1949, were civil proceedings within the meaning of article 133(I)(c). The Bench held that the Constitution has not adopted a simple classification of proceedings mutually exclusive and exhaustive as 'civil'and 'criminal proceedings', but that the Constitution clearly contemplates three categories civil and criminal proceedings and a third category 'other proceedings'. The bench did not accept the argument that whenever it is shown that a proceeding is not a criminal proceeding it must be held to be a civil proceeding. It has to be noted that the learned judges have referred to with approval the decision of the Patna High Court dealing with the character of the proceedings under article 226 for the issue of a writ to quash proceedings before the revenue authorities. Both on principle and on overwhelming authority of not only this court but the other High Courts we are clearly of the opinion that there is no substance in the contention raised by the learned counsel.

Our attention was also drawn to a Bench decision of the Calcutta High Court in N.C. Mookerjee & Co. v. Union of India. In that a Bench of the Calcutta High Court held that an application for a writ questioning the proceedings under the Bengal Public Demands Recovery Act was a civil proceeding within the meaning of article 133(I)(c). In that case the applicant for the issue of a writ was assessed to excess profits tax and he filed the writ questioning the legality of the levy and the proceedings for the recovery of the tax. The judgment shows that this point was not seriously argued but was 'raised rather faintly' that the proceeding before the High Court was not a civil proceeding. Further the attention of the learned judges does not appear to have been drawn to the several decisions referred to above. With great respect to the learned judges we are unable to agree with them.

It only remains to refer to the judgment of the Supreme Court in State of Uttar Pradesh v. Vijay Anand on which also reliance was placed by the learned counsel for the petitioner. That case dealt with the scope and the interpretation of sections 2, 10 and 11 of the U.P. Agricultural Income-tax Act as validated by Act XIV of 1956. In a proceeding under article 226 of the Constitution the High Court quashed the order of assessment passed by the Additional Collector of Banaras. Relying upon the subsequent legislation, U.P. Act XIV of 1956, the state filed an application in the High Court for review under section II of the said Act and the same was dismissed. The argument before the High Court, as well as before the Supreme Court, was that as section II expressly confers a power of review upon the Additional Collector, the judge who issued the writ quashing the assessment will also have similar powers of review on the ground that the writ proceedings should be regarded as a continuation of the proceedings before the Additional Collector. This argument was repelled by the Supreme Court holding that the High Court while exercising jurisdiction under article 226 was exercising original jurisdiction, and not revisional or appellate and that the case be regarded as a continuation of the proceeding under U.P. Act XIV of 1956 before the inferior tribunal. The Supreme Court had not to consider the question of the nature of the proceeding before the High Court, and we do not see anything in the judgment which throws any doubt about the correctness of the view expressed in First Additional Income-tax Officer v. R. Shanmugha Rajeswara Sethupathi. For all the reasons mentioned above, we are clearly of the opinion that the proceedings in the writ are not civil proceedings.

Learned counsel next contended that, in any event, a certificate may be granted under article 132(I) on the ground that the case involves a substantial question of law as to be interpretation of the Constitution. He relied upon a judgment of the Supreme Court in Raja Ganga Pratap Singh v. Allahabad Bank Ltd. dealing with the scope of article 228 of the Constitution. In that case a scheduled bank had filed a suit in the court of the city civil Judge in the State of Uttar Pradesh for recovery of money due under a mortgage. The defendant debtor contended that the provision in the U.P. Zamindars Debt Reduction Act which, amongst others, exempted a debt due to a schedule bank from the operation of the Act was invalid as offending article 14 of the Constitution. The debtor made an application under article 228 of the Constitution for transfer of the case to the High Court on the ground that the case involved a substantial question of law as to the interpretation of Constitution. The High Court dismissed the application but the Supreme Court directed the transfer holding that the case satisfied the requirements of article 228. Surely, from this decision, it cannot be argued that, however untenable or frivolous the objection may be, once article 14 is invoked in any suit or proceeding leave to appeal should be granted under article 132(I) of the Constitution.

Even though the same words' the case involves a substantial question of law as to the interpretation of the Constitution' are used in articles 228 and 132 the distinct object or the principle underlying the two provisions and the varying contents in which they may be invoked should be broke in mind. In a case arising under article 228, even at the threshold, the case has to be withdrawn to the High Court before any decision is rendered on the question of law as interpretation of the Constitution. On the other hand, in a case under article 132 the stage has passed when the High Court itself has rendered a decision on the question of law as to the interpretation of the Constitution. Naturally therefore, in an application under article 132 the case must satisfy two conditions concurrently : (i) Whether the case involves a decision on the interpretation of the Constitution; (ii) Whether that decision also involves a substantial question of law toughing that aspect. We are inclined to take the view that decisions dealing with the applicability of article 228 cannot, regardless of all considerations, govern the applicability of article 132(I).

The essential distinction between interpretation of a particular provision of a Constitution and its application must be overlooked. Interpretation is the process of finding out the meaning, scope and operation of a particular provision, while application is merely a process of administering the law. In the instant case no question of interpretation of article 14 arises and the only question is whether section 3 of the Indian Income-tax Act would stand the test of the operation of article 14.

The main question which arose for decision was whether the liberty given to a department to assess an association and its members was so bereft of any principles as to offend the provisions of article 14. On examination of the scheme of the Income-tax Act and its several provisions this court came to the conclusion that the department has not been clothed with the powers of taxing an association or the individual members in a naked arbitrary fashion, and that there is ample indication in the scheme, design and policy of the Act to fetter an unqualified, free and unbridled taxing power. In such situation, we are of the opinion that the instant case does not involve a substantial question of law as to the interpretation of Constitution. Furthermore, the scope and implications of article 14 of the Constitution have been the subject of several decisions of the Supreme Court Merely because article 14 has to be referred to, to find out whether section 3 of the Income-tax Act violates article 14 of the Constitution, a substantial question of law as to the interpretation of the Constitution cannot be said to be involved in the case. In a recent judgment of the Supreme Court in Chunilal V. Mehta & Sons Ltd. v. Century Spinning & . the Supreme Court after a review of the entire case law approved the view taken by the Madras High Court and held that 'if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled, and the only question was of applying those principles to the particular facts of the case, it would not be substantial question of law'. Applying this rule we have no hesitation in holding that the case does not satisfy the requirements of article 132(I) of the Constitution.

The petitions are therefore dismissed with costs.

Petitions dismissed.


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