Skip to content


Santimoy Bhattacharyya and anr. Vs. Lakshmi Pada Dutt and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Judge
Reported in1986(1)CHN299,90CWN69,[1986]159ITR637(Cal)
ActsIncome Tax Act, 1961 - Section 281A and 281A(1)
AppellantSantimoy Bhattacharyya and anr.
RespondentLakshmi Pada Dutt and ors.
Appellant AdvocateSanjoy Bhattacharyya and ;Chandrima Bhattacharyya, Advs.
Respondent AdvocateH.C. Ghosh and ;S.K. Hazra, Advs.
Cases ReferredLalappa Lingappa v. Laxmi Vishnu Textile Mills Ltd.
Excerpt:
- .....218 of 1983. by the impugned order, the lower appellate court sent the case back on remand to the learned munsif for trial on merits.2. the suit has been filed by the plaintiff/respondent no. 1 for a declaration of title, recovery of possession and other reliefs on the footing, inter alia, that he is the real owner of the disputed property which stands benami in the name of his nephew, kali kinkar mitra, defendant no. 2. at this stage, it is necessary to refer to the provisions of section 281a of the income-tax act, 1961. section 281a provides as follows:'281a. (i) no suit to enforce any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be instituted in any court by or on behalf of a person.....
Judgment:

Murari Mohan Dutt, J.

1. This is a defendant's appeal against the order dated May 23, 1984, of the Tenth Court of Additional District Judge, Alipore, setting aside the Order No. 22 dated June 6, 1983, of the First Court of Munsif at Alipore, rejecting the plaint filed by the respondent No. 1 registered as Title Suit No. 484 of 1981 and 218 of 1983. By the impugned order, the lower appellate court sent the case back on remand to the learned munsif for trial on merits.

2. The suit has been filed by the plaintiff/respondent No. 1 for a declaration of title, recovery of possession and other reliefs on the footing, inter alia, that he is the real owner of the disputed property which stands benami in the name of his nephew, Kali Kinkar Mitra, defendant No. 2. At this stage, it is necessary to refer to the provisions of Section 281A of the Income-tax Act, 1961. Section 281A provides as follows:

'281A. (I) No suit to enforce any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be instituted in any court by or on behalf of a person (hereafter in this Section referred to as the claimant) claiming to be the real owner of such property unless,--

(a) the income, if any, from such property has been disclosed in any return of income furnished by the claimant under this Act; or

(b) such property has been disclosed in any return of net wealth furnished by the claimant under the Wealth-tax Act, 1957 (27 of 1957); or

(c) notice in the prescribed form and containing the prescribed particulars in respect of the property has been given by the claimant to the Income-tax Officer.

(2) The Income-tax Officer shall, on an application made by any person in the prescribed manner and on payment of the prescribed fees, issue for the purposes of a suit referred to in Sub-section (1), relevant extracts from the return furnished by such person under this Act or the Wealth-tax Act, 1957 (27 of 1957), or a certified copy of any notice given by such person under Clause (c) of Sub-section (1), within fourteen days from the date of receipt of the application therefor.

(3) This section shall not apply to any suit of a value not exceeding two thousand rupees which is tried by,--

(a) a Court of Small Causes constituted under the Presidency Small Cause Courts Act, 1882, (15 of 1882) or the Provincial Small Cause Courts Act, 1887 (9 of 1887); or

(b) a court invested with the jurisdiction of a court of small causes, by or under any enactment for the time being in force, in the exercise of such jurisdiction.'

3. It was contended before the learned munsif on behalf of the defendant/appellants that as the plaintiff-respondent No. 1 did not file a certified copy of the notice required to be given prior to the institution of the suit, the suit was barred by the provisions of Section 281A. It may be stated here that in the plaint, there is a categorical statement that the plaintiff has issued a notice to the Income-tax Officer in respect of the disputed property in accordance with Section 281A on July 20, 1981.

4. The learned munsif took the view that Section 281A was not complied with by the plaintiff and, as such, the suit was not maintainable in the present form. In that view of that matter, the learned munsif held that the suit was not maintainable and dismissed the same. This order dismissing the suit was passed by the learned munsif at the preliminary stage even before the settlement of issues or filing of written statements.

5. Being aggrieved by the said order of the learned munsif, the plaintiff/respondent No. 1 preferred an appeal to the learned Additional District Judge, 10th Court, Alipore. The learned Additional District Judge, however, took a different view and held that the suit was quite maintainable. Accordingly, the learned Additional District Judge allowed the appeal and set aside the order of the learned munsif dismissing the suit. Further, the learned Additional District Judge sent the case back on remand to the learned munsif for trial on merits. Hence this appeal.

6. Mr. Sanjoy Bhattachayya, learned advocate appearing on behalf of the defendant/appellant, has strenuously urged that the lower appellate court has misread and misinterpreted the provision of Section 281A of the Income-tax Act. It is submitted by him that Sub-section (2) is controlled by Sub-section (1) of Section 281A. Further, it is submitted that the two Sub-sections should be considered as a whole. He has also made an extreme contention that Sub-section (2) should be treated as a proviso to Sub-section (1). In other words, it is submitted by Mr. Bhattacharyya that unless a certified copy of the notice is procured before the filing of the suit and filed along with the plaint, the suit would not be maintainable as it would be barred by the provision of Section 281A. In support of his contentions, he has placed reliance upon a few decisions which are: a decision of the House of Lords in London Investment & Mortgage Co. Ltd. v. Worthington [1956] 38 TC 86 , a decision of the Supreme Court in CIT v. Distributors (Baroda) (P.) Ltd. : [1972]83ITR377(SC) and another decision of the Supreme Court in Lalappa Lingappa v. Laxmi Vishnu Textile Mills Ltd., : (1981)ILLJ308SC . These decisions relate to the interpretation of statutory provisions and it is not necessary for us to refer to these decisions except to the last-mentioned decision in Lalappa's case, : (1981)ILLJ308SC , where it has been held that when the language is plain and unambiguous, it should be given effect to whatever may be the consequence, for, in that case, the words of the statute speak the intention of the legislature.

7. In the instant case, the language of Section 281A is plain, simple, unambiguous and clear. Sub-section (1) of Section 281A prescribes a bar to the institution of a suit unless certain conditions are fulfilled prior to such institution. One of the conditions with which we are concerned is that contained in Clause (c) of Section 281A, i.e., the giving of a notice to the Income-tax Officer in the prescribed form containing the prescribed particulars in respect of the property in suit. If the plaintiff/respondent No. 1 had not given such a notice to the Income-tax Officer, the suit would be definitely barred by Section 281A(1)(c) of the Income-tax Act. In the plaint, the plaintiff has categorically stated about the giving of such a notice to the Income-tax Officer. In our opinion, in the face of such a statement in the plaint, the court has no jurisdiction to reject the plaint or dismiss the suit as not maintainable. If, ultimately, it is found that the plaintiff has not given such a notice, the court will have surely the jurisdiction to dismiss the suit on that ground. But, at the preliminary stage before the settlement of issues or filing of written statements, the only provision under which the court could reject the plaint is Order 7, Rule 11(d), of the Code of Civil Procedure. But, as there is a statement in the plaint as to the giving of a notice, we are of the view that the learned munsif had no jurisdiction to reject the plaint.

8. Sub-section (2) of Section 281A does not, in our opinion, create any bar to the institution of the suit. It provides for a mode of proof of the fulfilment of the conditions prescribed by Sub-section (1) of Section 281A. Whether the plaintiff-respondent No. 1 in this case has given notice as required to be given under Clause (c) of Sub-section (1) of Section 281A will be proved by the production of a certified copy of such notice that may be issued by the Income-tax Officer. That proof will be adduced by the plaintiff at the final hearing of the suit. There is no indication in Sub-section (2) of Section 281A that the plaintiff has to procure the certified copy of the documents as mentioned in Sub-section (2) before the institution of the suit. All that is required to be done is the fulfilment of the conditions or such of them, as are applicable, before the institution of the suit. We are unable to accept the contention of Mr. Bhattacharya that Sub-section (1) controls Sub-section (2) of Section 281A. We are also unable to accept the contention that Sub-section (2) should be treated as a proviso to Sub-section (1).

9. No other point has been raised in this appeal.

10. For the reasons aforesaid, the judgment of the learned Additional District Judge is affirmed and this appeal is dismissed with costs.

11. Let the records be sent down to the court below as soon as possible. The prayer for stay of operation of this order, as made by Mr. Bhattacharyya on behalf of the appellant, is disallowed.

Jitendra Nath Chaudhuri, J.

12. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //