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Commissioner of Income Tax Vs. Muktiar Begum and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberI.T. Ref. No. 407 of 1973 and 57 of 1974
Reported in(1980)18CTR(Cal)367
AppellantCommissioner of Income Tax
RespondentMuktiar Begum and ors.
Cases ReferredCalcutta v. Mrs. Muktiar Begum
Excerpt:
- .....for the government, who paid no heed to the same. in that view of the matter, as there is no paper book filed in it reference no. 407 of 1973 and as there is no sufficient cause for inordinate delay, we reject this reference and we decline to answer the question. in view of the conduct of the government, we direct the government to bear the entire cost of the reference.5. the it reference no. 57 of 1974, which is in the list, related to the penalty arising out of the it appeal no. 5012(cal) of 1964-65. this relates to the penalty proceedings arising out of the assessment order for the asst. yr. 1964-65. here, the question was whether, on the facts and in the circumstances of the case, the tribunal was correct in cancelling the penalty imposed u/s 273(a) of the it act, 1961 for the asst......
Judgment:

: Sabyasachi Mukharji, J. - The IT Ref. No. 407 of 1973 (CIT, West Bengal IV, Calcutta v. Mrs. Muktiar Begum & Ors.) was a reference relating to the asst. yr. 1964-65 and 1965-66. The matter was about the assessment of the assessee as an Association of persons or as sole proprietor. The Tribunal by its order dated 30-9-1972 held that the assessment on the basis of an AOP was not valid. On that, for those years, reference application was made and u/s 256(1) of the IT Act, 1961, by a Statement of Case drawn up on 14-6-1973, the Tribunal referred two questions to this Court for those two years. Those two questions inter alia, were (i) whether the Tribunal was justified in holding that the assessments on the basis of Association of Persons was not valid; and (ii) on the facts and circumstances of the case where there was a consent on behalf of the minor children and Mrs. Muktiar Begum to carry on the business of a single unit.

2. This Statement of Case, though made on 14-6-1973 was forwarded to this Court on 27-7-1973. As this Statement of Case had been submitted to this Court after a lapse of 120 days from the date of application for the reference, the Registrar of this Court by his order dated 23-8-1973 admitted the Statement of Case subject to all exceptions that might be taken at the time of hearing of the reference. Inspite of the aforesaid order, until 10-3-1979, i.e. to say nearly about six years, no Paper Book had been filed. Thereafter, on 13-3-1979 leave was granted by Mr. Justice Deb and Mr.Justice Pyne to file Paper Book in Matter No. 407 of 1973 in the course of the following week. On 19-3-1979 a certain Paper Book was filed in this Court. Thereafter, when the matter came up for hearing before us on the last Thursday, 24-7-1980, it was pointed out that the Paper Book was incorrect. The cover page of the Paper Book of IT Reference No. 407 of 1973 contained Reference Application No. 772 (Cal) of 1973-74 in IT Appeal No. 953 (Cal) of 1972-73. Inside the Paper Book, however, the Statement of Case that was filed related to Reference Application No. 772 (Cal) of 1973-74 arising out of IT Appeal No. 953 (Cal) of 1972-73 for the asst. yr. 1966-67. The Statement of case related to the order of the Tribunal for the asst. yr. 1966-67. The Statement of case related to the order of the Tribunal for he asst. yr. 1966-67. The statement of the Case was prepared by the Tribunal on 28-11-74. This Statement of Case, as mentioned hereinbefore, relates to the asst. yr. 1966-67, i.e. following the asst. yr. 1964-65 and 1965-66. Apart from the fact that this cover page is incorrect, in view of the fact the way in which the Revenue and the Government Department act in this Court one overlook that, but the inside papers relate to the assessment order of the Tribunal for the subsequent year. As yet no Paper Book has been filed in the IT Reference No. 407 of 1973 relating to the asst. yr. 1964-65 and 1965- 66. There is no explanation for this delay. Even today the matter was called on, it appears that the ld. advocate appearing for the Revenue was not aware of what had happened and he was under the impression that the cover page was misprinted and mistyped only.

3. Incidentally, in order to expedite the matter this Court, instead of insisting on printed Paper Book, permitted typed Paper Book. As we have mentioned before, the typed Paper Book in IT Reference No. 407/1973 relating to the asst. yr. 1964-65 and 1965-66 has not yet been filed, when the reference was made by the Tribunal as early on 23-8-1973 in respect of the asst. yrs. 1964-65 & 1965-66. There is no justification for this, as a matter of fact.

4. Ld. advocate appearing for the assessee had pointed out to us that this matter appeared the daily cause-list on various dates and on 7-2-1980 this fact was brought to the notice of the Advocate-on-record for the Government, who paid no heed to the same. In that view of the matter, as there is no Paper Book filed in IT Reference No. 407 of 1973 and as there is no sufficient cause for inordinate delay, we reject this reference and we decline to answer the question. In view of the conduct of the Government, we direct the Government to bear the entire cost of the reference.

5. The IT Reference No. 57 of 1974, which is in the list, related to the penalty arising out of the IT Appeal No. 5012(Cal) of 1964-65. This relates to the penalty proceedings arising out of the assessment order for the asst. yr. 1964-65. Here, the question was whether, on the facts and in the circumstances of the case, the Tribunal was correct in cancelling the penalty imposed u/s 273(a) of the IT Act, 1961 for the asst. yr. 1964-65. The basis was that as the Tribunal had cancelled the assessment in the quantum appeal for the asst. yr. 1964-65, this penalty order could also not be sustained. Naturally, this reference cannot also be proceeded with unless the IT Reference No. 407 of 1973 was properly disposed of i.e. to say, if the quantum appeal for the asst. yr. 1964-65 was upheld by this Court in IT Reference No. 407/1973, then only the question in this reference could be gone into. In this matter also, similarly the reference was made on 19-12-1974. The Statement of Case was accepted by this Court as belatedly on 4-3-1974 as it was by the order of the Registrar of this Court and four years thereafter on 18-7-1978 leave was obtained form Mr. Justice Deb and my learned brother to file Paper Book in the course of a week and the Paper Book was ultimately filed on 22-7-1978. This matter has been appearing in the list for some time and it was brought to the notice of ld. Advocate for the Revenue that unless the quantum appeal Paper Book was only filed, this reference could not be proceeded with. In spite of the same, the other Paper Book was not also filed. In that view of the matter, as we have rejected the IT Ref. No. 407 of 1973, it is not possible for us to answer the question in this reference, being IT Reference No. 57 of 1974, and we decline to answer the question. There will be no order as to costs in this reference.

6. As we have mentioned before, the references relate to the asst. yrs. 1964-65, 1965-66 and 1966-67, already nearly 13 years have passed. The Government took time for more than six years in one case and four years in the other to produce and file typed Paper Book. The Paper Book, when filed, was found incorrect and could not be of any assistance to this Court. Very often, there is clamour that the litigations are pending in Court for nearly 20 years. If some examination is made to the causes behind such delay, one would perhaps be able to appreciate the true causes for this delay, if one naturally intends in doing so. This has been our experience in most of cases where the Revenue is in-charge of the proceedings. In the aforesaid view of the matter, we direct ld. advocate-on-record for the Government to transmit a copy of the judgment to the Honble Minister in charge of the Law and Justice Department and to file an affidavit in this Court that he has so transmitted a copy of the judgment.

Sudhindra Mohan Guha, J. - I agree.


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