1. This is an application by theassessee Hulas Chand Rampuria for a certificate that this is a fit case for appeal to the Supreme Court.
2. This application raises a question relating to the application of Section 34(1)(a) in the facts of this case.
3. The facts of this case may be summarised shortly as follows:--
Hulas Chand Rampuria made a gift of Rs. 5,00,000/- to his wife. She died in 1935 after giving birth to a son, a week earlier. The son was named Kamal Singh Rampuria, she had a share in the firm of Messrs. Bikanir Trading Co. which admittedly devolved on her son Kamal Singh Rampuria upon her death. This share or interest in the firm also yielded income. In the several years from 1936 till 1944-45 the said Hulas Chand Rampuria, the natural guardian of the assessee showed the income from the firm of Bikanir Trading Co. in the returns made on his behalf.
4. She, wife of the said Hulas Chand Rampuria executed a will whereby she bequested the said sum of Rs. 5,00,000/-., Rs. 1,00,000/-to her daughter, Rs. 1,00,000/- to different charities and a sum of Rs. 3,00,000/- to her only son, Kamal Singh Rampuria.
5. This Sum of Rs. 5,00,000/- stood invested in the firm of Messrs. Hazarimull Hiralal and earned interest. In the several returns upto-1944-45 made by the father Hulas Chand Rampuria since deceased, the natural guardian of the assessee the income by way of interest from the firm of Hazarimull Hiralal were shown in his account. The same was assessed in the hands of his father under Section 16(3)(i) of the Indian Income Tax Act, 1922.
6. The said Hulas Chand Rampuria was dissatisfied with the order of the Income-tax Officer for the assessment year 1940-41 in respect of the assessment made under Section 16(3)(i) and carried the matter to the High Court under Section 66(i) of the Income-tax Act.
7. In the return for the assessment year 1945-46 the income of the minor son from his share in the business of Messrs. Bikanir Trading Co. was shown by his father in his return. In the same return, however, the income derived by way of interest from the firm of Messrs. Hazarimull Hiralal was not shown in his father's return. The share income alone was arrear on 25th day of February, 1950.
8. In the year 1962, the High Court expressed the opinion in the said Reference thatthe income by way of interest from the firm of Hazarimull Hiralal could not be taxed in the bands of the said Hulas Chand Rarnpuria under Section 16(3) of the Indian Income Tax Act. Thereupon the Income-tax Officer in the view that income had escaped assessment issued a notice under section 34 of the Income-tax Act to the assessee in March 1954 by which time the assessee had attained majority and had made a return in March 1954. The assessment was completed on 25th day of March, 1954.
9. The assessee did not make any objection to the application of the provisions of section 34 before the Income-tax Officer, who observed in his assessment order, inter alia, as follows:--
'Action under Section 34(i)(A) was taken since the interest income amounting to Rs. 33,931/- from Messrs. Hazarimull Hiralal was not included in the original assessment, nor was it shown by the assessee then. The notice under section 22 was served on the assessee on 26th March, 1954. A Return has been filed without giving the figure for interest saying that interest income is not known to the assessee. I have consulted the files of Messrs. Hazarimull Hiralal and I complete the assessment including the above income'.
10. Then he found that the total income was Rs. 56,280 of which Rs. 33,934/- was income by way of interest. Hence he assessed as above for 1945-46.
11. The matter was taken by the assessee to the Appellate Assistant Commissioner where the assessee expressly raised an objection as to the applicability of Section 34 for the first time.
12. The Appellate Assistant Commissioner in the course of his order observed as follows:--
'The Income Tax Officer might have known at that time that the minor had interest income and also that such income was being assessed in the father's hands under Section 16(3) ..... The question as to whocould be rightly assessed on the income had not been considered at the stage when the minor was assessed in April 1946 and ultimately in the assessment of the father the amount could be expected to be included or not included according as to what facts would be available at the time of making that assessment irrespective of the treatment in the earlier years. The amount was actually included in the father's assessment with the observation that the interest was disguised capital account of Hulash Chand'.
13. The Appellate Assistant Commissioner also held that 'the Income Tax Officer was within his power to take action for assessing a particular amount in somebody's hand if he is satisfied that such an amount is his income, even though it is within his knowledge that the amount has been included in somebody else's assessment'.
14. The assessee being dissatisfied with the order of the Appellate Assistant Commissioner took the matter to the Tribunal. There they contended inter alia in the words of the Tribunal as follows:--
'The assessee appealed to the Tribunal and contended that the Income-tax Officer was wrongin repelling the contention of the assesses that there was no material for initiating Section 34 proceedings as the Income-tax Officer had chosen to treat the interest income received from Messrs. Hazarimull Hiralal as income of the father under Section 16(3) of the Act and taking the cis (sic) the assessee (through his guardian) had not chosen to show this as his income. When the High Court had rendered its decision in 1952 and even before that, the income-tax Officer knew that the income belonged to the minor, the assessee, but had chosen nevertheless to assess it in the hands of the father and having done so it was not open to him, when the High Court decision was rendered, to initiate proceedings under Section 34.'
15. In the course of their order the Tribunal observed inter alia as follows:
'For the assessment year 1945-46 with which we are now concerned, the old procedure of returning the income from the Bikanir Trading Company only was followed and the assessment was completed on April 30, 1946, the interest income being included in the hands of the father on February 28, 1950. No doubt at the inception the Income Tax Officer had put the assessee's guardian on the wrong and by taxing incorrectly interest income in his hands. So. to an extent, the assessee was justified in not returning this income, but in so far as the father had not chosen to take the assessment made on him by taking proceedings under section 66(1), he hoped that the assessment made on him would be cancelled. At any rate, when the reference application was made to the High Court then at feast a duty lay upon him as guardian of the minor to return the income from Hazarimull Hiralal in the return of the assessee. Not having done so, he must be said to have deliberately kept back the sources of income from the Department'.
16. The Appellate Tribunal accordingly confirmed the order of the Appellate Assistant Commissioner. Thereafter the assessee successfully pressed for a reference under Section 66(1) of the Income-tax Act. The question of law referred by the Income-tax Appellate Tribunal to this Hon'ble Court was as follows:--
'Whether on the facts and circumstances of the case, the assessment made under Section 34(1) (a) of the Income-tax Act was justified in law.'
17. The reference was heard by their Lordships S. P. Mitter and K. C. Sen. Mr. Justice Mitter who gave the advise observed as follows:--
'It appears to us that the Income Tax Officer could have no reason, on the materials before him, to believe that there had been any omission to disclose material facts as stated before.'
'On the background of the facts stated above, we are of opinion that the finding made by the Tribunal in this regard was not justifiable. It is undoubtedly true that the finding of fact made by the Tribunal cannot be interfered with by the Court, but we consider that a finding on a question of fact regarding the aforesaid matter is open to attack under Section 66 of the Act as erroneous in law, as we find thatthere is no evidence to support it and it is perverse as it has been reached without due consideration of the several matters discussed above for such a determination.
We are therefore of opinion that there was no non-disclosure of material facts truly and fully as contended on behalf of the Department, and therefore the question must be answered in the negative'.
18. It is a matter of great importance as to whether in such circumstances as they obtain in the present case there is an omission to desclose the income by an assessee so that it attracts Section 34(1) of the Income Tax Act.
19. In the view that their Lordships have taken of the matter, it is a matter of great public importance whether in the absence of a specific question as to want of evidence and/or perversity, the High Court in a reference, can give an answer on the basis of want of evidence and perversity. Even assuming that the Supreme Court has already settled the law on the point, it is of great public and private importance to know from the highest Court of the realm whether it was permissible to the Court hearing a reference in the absence of a specific question to advise as it has done, in this matter.
20. Hence, it seems to me that it is a fit case for grant of a certificate for leave to appeal to the Supreme Court.
21. It must be noted before I conclude that Mr. T. K. Basu, learned counsel appearing for the assessee made helpful submissions fortified by numerous authorities on the general question as to the scope of Section 66(A)(2) of the Income Tax Act, which inter alia were taken advantage of in expressing our minds on the point in a judgment already delivered.
22. Let a certificate under Section 66(A)(2) be drawn up and issued. Costs of this application will be costs in the Supreme Court appeal.
23. LAIK, J : The question pointedly raised in this application as to what are the tests of a 'fit case' under the provisions of Section 66-A (2) of the Income-Tax Act, 1922 or in other words what forms the proper foundation for the granting of a certificate for leave to appeal to the Supreme Court of India under the said provisions of the Income-Tax Act, I am happy to note that it is very well argued by the learned Advocates on both sides particularly by Mr. T. K. Basu appearing for the respondent and opposing the application for the grant of a certificate. The facts and the orders are sufficiently stated by my learned brother and I refrain from repeating them. I would only deal with the above question.
24. A number of decisions viz., those of the Judicial Committee of the Privy Council, of the Supreme Court of India and of different High Courts arising out of cognate provisions of Sections 109 and 110 of the Code of Civil Procedure (Section 66A(3) of the Income Tax Act makes it applicable), and the decisions arising out of Article 133 of the Constitution and Section 66 of the Income Tax Act, were cited in sup-port of the respective contentions of either side It is not pretended that the point raises no difficulty.
25. Coming straight to the decisions, a direct case of the Privy Council on Section 66A of the Income Tax Act, dealing with the equa-lity of the said provision with me Code of Civil Procedure, is the case of Delhi Cloth and General Mills Co. v. Income Tax Commr. . Their Lord-ships of the Judicial Committee inter alia held that the requirements under Section 110 of the Code of Civil Procedure are not sufficient for such purpose and that the said section was not applicable even on Section 66-A (3) of the Income Tax Act. This decision refers to another decision of the Board in the case of Tata Iron & Steel Co. Ltd. v. Chief Revenue Authority, 50 Ind App 212: (AIR 1923 PC 148) but that was on Section 51 of the Income Tax Act of 1918 when there was no provision like Section 66A of the present Act. But the East Punjab High Court In the case of Rajmal Paharchand v. Commr, of Income-Tax equated the requirements under Section 66A with Article 133(l)(c) of the Constitution. The Allahabad High Court in the case of Mishrimal Gulab Chand v. Commr. of Income Tax : 20ITR91(All) after observing that only the concluding words of Section 66A(2) of the Act are similar to Section 109(c) of the Code of Civil Procedure, held that the principle under Section 109(c) of the Code would govern the application under Section 66A(2) of the Act. It should be remembered in this connection that the Supreme Court (Shah J.) held in Jethanand v. State of U.P. : 3SCR754 , that the inconsistency between Section 109 of the Code and Article 133(1)(c) had been removed by the Code of Civil Procedure (Amendment) Act, 1955. This Court held in the case of Commr. of Excess Profits Tax West Bengal v. Rubby General Insurance, Co. Ltd. : 25ITR418(Cal) that Article 133 of the Constitution is not applicable in an application for leave but Article 135 read with Section 66A are applicable. The Bombay High Court in the case of J. P. Sharma v. Phalton Sugar Works Ltd. : AIR1964Bom116 held that Article 133 of the Constitution was not attracted to Income-tax, being not a civil proceeding. This Court again in the case of Kharkhari Coal Co. v. Commr. of Income Tax : 46ITR383(Cal) held that Article 133 has no application under Section 66-A.
26. Now, on the matter of the sufficiency of the grounds for the granting of a certificate for leave to appeal to the Supreme Court of India, the Assam High Court held in the case of Himatsingka Timber Ltd. v. Kumudini Dutta that the fact that different High Courts hold divergent views regarding the question involved is not sufficient ground for a certificate. Deka J. was not agreeable to follow the principles laid down by this Court.
27. The Allahabad High Court in the case of Ruchcha, Saithwa v. Hansrani : AIR1928All220 held that there must be something more than substantial question of law. Misapplication of law to the facts of a particular case does not make the case, fit for a certificate. The same High Court in the case of Sheo Pujan Upadhiya v. Bhagat Prasad Singh, : AIR1933All4 granted the certificate, because it involved matters of principle and matters of importance to Hindu Community. The same High Court again in the case of M. Iqubal Bahadur v. Mt. Ram Sree : AIR1934All58 held that mere substantial question of law was not sufficient. The same High Court however did not grant the certificate in the case of Commr. of Income-tax v. Behari Lal Bhargava : 10ITR388(All) though the Reference Bench had itself considerable doubt in its mind.
28. The Bombay High Court (Chagla C. J.) in the case of Kaikhushroo Pirojsha v. C. P. Syndicate Ltd. AIR 1949 Bom 134 held that the certificate should be granted if the law is not well settled or if there is some doubt as to the principle of law involved.
29. In the case of Delhi and General Mills Co. Ltd. v. Commr. of Income-Tax, argued by Mr. Mahajan in the Lahore High Court, reported in AIR 1927 Lah 181, the certificate was granted because the question would arise each year.
30. The Madras High Court in the case of Raja Rajeswara Setupathi v. Arunachalam Chettier, AIR 1923 Mad 602 did not grant the certificate, as the question was not of general interest although it was brought to the notice of the Court that the certificate was granted in another case, by the same High Court on the same question. In a very short judgment, the said High Court in the case of Commr. of Income-tax v. S. L. Mathias : 6ITR8(Mad) , which Mr. Patanjali Sastri argued, Varadachariar J. granted the certificate as there was substantial question of law which would arise each year. About 12 years thereafter in the case of Balasubramania and Co. v. Radhakrishnamurthy, AIR 1949 Mad, 741 the same High Court held that every substantial question of law does not make the case a fit one for a certificate. Public importance on general legal consideration is necessary. The principles laid down by the same High Court in the case of Subba Rao v. Veeraju : AIR1951Mad969 (FB) are approved by the Supreme Court in the case of Chunilal V. Mehta v. Century Spinning and . : AIR1962SC1314 , Rajamannar C. J. refers to Article 138 but expressly leaves cases under Sec-109(o) of the Code, out of consideration. There is an exhaustive discussion as to the fitness of a certificate in a later decision of the said High Court in the case of Md. Hussain v. Ganga Naicken : AIR1963Mad222 . In a still more recent decision in the case of State of Madras v. A. R. Srinivasan : (1966)IILLJ17Mad , the Madras High Court refused to grant leave, though there was substantial question of law. It does not appear that the said Supreme Court decision in : AIR1962SC1314 (Supra) is considered.
31. The Nagpur High Court, in the case of M. E. R. Malak v. Commr. of Income Tax, AIR 1929 Nag 336, refused to grant a certificate, arising out of Income Tax proceedings, as it was not a question of public importance.
32. The Patna High Court in the case of Nrisingha Charan Nandy v. Rajniti Prasad Singh,AIR 1984 Pat 564, held that the substantialquestion of law was not sufficient. In a later decision, the same Court in the case of Province of Bihar v. Abdul Majid, AIR 1951 Pat 439 (1) rejected the application for leave on the ground that the amount was small though there was a substantial question of law and further noted that there was no sufficient and immediate urgency. But the Supreme Court (Mahajan J.) allowed the appeal from this case, after granting special leave. Nothing was said about the granting certificate. Our attention was drawn to the observation of the Supreme Court in the case of Dhakeswari Cotton Mills v. Commr. of Income-tax : 27ITR126(SC) about the nature and character of the power under Article 136 which is 'exceptional' and 'overriding' and it has to be exercised sparingly and with caution and only in special and extraordinary situation.
33. The Punjab High Court in the case of Rajmal Pahar Chand Amritsar v. Commr. of Income Tax stamped it as a fit one for appeal, as it was a case of great public or private importance because of the conflict of decisions on the point. About 2 years thereafter, the same High Court (Kapur J. as His Lordship then was) in the case of Gulzari Lal v. Swadeshi Mills Ltd. Bombay holds that mere substantial question of law is not sufficient. Great public or private importance is necessary.
34. Wanchoo C. J. (as his Lordship then was) held in the case of Gulab Bai v Manphool Bai , that mere existence of substantial question of law does not give jurisdiction to the High Court to certify the case to be fit one for appeal. The question must also be of great public importance.
35. If we notice two other decisions--one from Rangoon and the other from Sind, it would appear that their Lordships held in the case of Sein Htaung v. E. A. Chettyar Firm, AIR 1936 Rang 65 that not only substantial question of law involving between the parties but a question of general importance, likely to govern numerous cases, is also necessary. It is held in the case of Mohd. Mahrabkhan v. Dur Mohd. Khan, AIR 1937 Sind 217 that even if there be two divergent views of two Full Bench decisions of different High Courts on the same question, that by itself, would not make it a fit case to warrant a certificate. A decision of the Mysore High Court in the case of C. G. Sastry v. B. V. Patankar, (S) AIR 1955 Mys 35 might be noted.
36. The following decisions of the Judicial Committee of the Privy Council namely, Banarsi Parshad v. Kashi Krishen, (1901) 28 I A 11 (P.C.); Radha Krishen Das v. Rai Kishen Das, (1901) 28 Ind App 182 (PC); Radhakrishna Ayyar v. Swaminatha Ayyar 48 Ind App 31: (AIR 1921 PC 25), Tata Iron and Steel Co. v. Chief Revenue-Authority, 50 Ind App 212: (AIR 1923 PC 148); Raghunath Prasad Singh v. Deputy Commr. 54 Ind App 126: (AIR 1927 PC 110); Commr. of Income Tax v. S. M. Chitnavis were also cited but they are not dealt with separately becausethey are the foundations of almost all the above decisions of the High Courts.
37. The Federal Court (Zafrulla Khan J) in the case of Krishnaswami v. Governor-General in Council AIR 1947 FC 37: 52 CWN1 (FC) held that the certificate was wrongly given by the High Court.
38. I have given the above account of cases not only because most of these are cited but to give, very briefly, a comparative chart of the prevailing views of different Courts.
39. Coming to the Supreme Court, Bose J. in the case of Nar Singh v. State of U.P. : 1SCR238 held that the High Court should not have granted certificate. The Supreme Court however accepted the same on special leave. In the case of Haripada Dey v. State of W. B. : 1SCR639 , Bhagwati J. held that the High Court had no jurisdiction to grant a certificate on the question of fact and to arrogate to itself the special jurisdiction as in Article 136 of the Constitution. The Supreme Court again in the case of Sidhes-war Ganguly v. State of W. B. : 1958CriLJ273 held that the certificate was not properly granted by the High Court as no complexity of law was involved requiring authoritative interpretation by the Supreme Court. Chakravortti, C. J.'s observation that the appellant had not the satisfaction of being fully heard is not a healthy atmosphere for the administration of justice according to their Lordships. In the case of Commr. of Income Tax v. Patel and Co. : 37ITR412(SC) their Lordships of the Supreme Court held that in view of an ordinance no certificate for leave under Article 133 in respect of a particular year of the assessment can be granted. Our attention was drawn to the two other decisions in the case of Provat Kumar Mitter v. Commr. of Income-tax, W. B. : 41ITR624(SC) and in the case of Commr. of Income-Tax v. Scindia Steam Navigation, Co. Ltd. : 42ITR589(SC) and it was argued that the last case is peculiar. Then comes the decision in the case of : AIR1962SC1314 where Mudholkar J., on behalf of the Supreme Court, equates the substantial question of law to public general importance (see paragraph 6). The view of the Madras High Court appealed from was approved. Without noticing the other Supreme Court decisions the principles of a fit case for certificate are elaborately discussed. In a later case viz., Achyut Adhikary v. State of W. B. : 2SCR47 in which the High Court granted the certificate on the ground that there was delay in delivering the judgment, the Supreme Court held that the said ground was not a proper one, being a question of fact. It is also contended that the observation of Kapur J., delivering the judgment on behalf of the Supreme Court in the case of Raiputana Textiles v. Commr. of income-tax : 42ITR743(SC) to the effect that the jurisdiction of the Supreme Court, in dealing with appeals from the High Court under theIncome-tax proceedings, is 'advisory', is not a very happy expression, rather loosely expressed, which contention we, sitting in the High Court, can not accept.
40. The expression 'great public or private importance' is coming down from Lord Hob-house from the year 1900. The other expressions such as 'general importance', 'public import-ance', 'great private importance', 'universal' or 'paramount importance', 'larger importance', 'considerable importance' have been freely used by the learned Judges at different times in similar cases, in considering the question as to whe-there a case satisfies the test of fitness.
41. It is seriously argued that even if a question has been settled by the highest Tribunal still if the High Court commits an error by not applying the said principles where would the remedy of an aggrieved person lie, if the certificate be not granted in that case and which does not fall within the category of special and extraordinary situation to attract the provisions of Article 136 of the Constitution. It is also argued that where the Judges of a High Court composing the Reference Bench differed and the question was referred to a third Judge, or where there is no absolute principle but it differs from case to case, would they be not fit cases for grant of certificates. The question raised therefore was whether the test of fitness was so rigorous.
42. Mr. Basu submitted before us not to apply the principles of the Supreme Court laid down in : AIR1962SC1314 (supra) to the Income-tax proceedings and pressed us to disregard the submission of the applicant's counsel and shut them out by not granting the certificate, as according to him, the Commissioner of Income-tax could, with all hope of success, ask for special leave to appeal before the Supreme Court. We do not feel satisfied about the said submission. It is not a part of the ordinary ministerial jurisdiction of this Court not to grant the certificate merely on the said ground, even it we be satisfied that the case fulfils the test of fitness under Section 66A(2) of the Income-tax Act. If one takes pains and scrutinises the Supreme Court cases, it would appear that in many cases, where leave was not granted by the High Court, the appeal itself was allowed by the Supreme Court. I am not unmindful of the observation of the Supreme Court that the irregularity can be cured only by the Supreme Court by giving special leave to appeal nunc pro tunc, but I am again reminded of the extraordinary power of the Supreme Court under Article 136 of the Constitution which the learned Judges of the Supreme Court themselves emphasised that it must be used Very sparingly.
43. The argument of Mr. Tarun K. Basu had advanced to a great length but had not ultimately succeeded in impressing us with the importance of his legal objection in the granting of the certificate, as the same was broken off near the end. Without going the length of saying that the said Supreme Court decision in : AIR1962SC1314 is on a level with the case under Section 66A2) of the Income-tax Act thefollowing principles of fitness of the grant of a certificate arising out of a case under Section 66A(2) of the Income-Tax Act, might be equally applied in appropriate oases, which are:
(1) When a question is fairly and really arguable and not at all free from difficulty,
(2) when there exists already a difference of opinion either in the same High Court or in different High Courts or a room for it,
(3) where the High Court thought it necessary to deal with the question at length For its complexity (case occupied a very long time before the High Court) and alternative views have been put forward and elaborate judgment was delivered,
(4) when it is still an open question and not finally settled by the Supreme Court,
(5) where there are grave and considerable doubts in the mind of the Reference Court itself and which are likely to govern other cases.
(6) where a precedent is necessary to be created,
(7) where it is capable of arising frequently in Courts, affecting the assessees generally and depending upon general principles,
(8) when a question of law applied is palpably absurd and contrary to the principle laid down by the Supreme Court.
(9) where substantial property rights of the parties is affected based on the interpretation of documents.
(10) where the question touches successive reference and the interest is recurring,
(11) where there are complexities of law requiring authoritative interpretation by the Supreme Court even touching the cases of small value.
(12) where the dispute is not measurable by money, but one of great public importance, such as those relating to religious rights or ceremonies of caste and family rights as well as the question of wide public importance such as question affecting the whole Community.
44. But it must also be borne in mind that no leave should be granted where a mere question of fact or a mere question of law arises even though the case is of great value and the judgments are not concurrent and unanimous. It should also be kept in view that the litigation is not to be made oppressively expensive and it is of importance not to allow the litigants, who have succeeded in the High Court, to be unnecessarily harassed by further appeal. It is also better to remind oneself that the fitting certificates evincing judicial process, are of great consequence and they seriously affect rights of the litigant parties.
45. I respectfully agree in the order proposed by my learned brother that it is a fit casewhere a certificate should be granted and I alsoagree with order for costs.