Allen Berry & Co. Ltd. And Others v. Income-Tax Officer, Patna And Another

Das, C.J:— These are two applications for a certificate for leave to appeal to the Supreme Court under Article 133 of the Constitution. The facts are these: The petitioners were assessed to tax under Section 23 of the Income Tax Act to heavy amounts well over Rs. 20,000/-; as a matter of fact, the petitioners were assessed to tax exceeding several lakhs.

2. Against these assessment orders the petitioners filed two applications for the issue of writs under Articles 226 and 227 of the Constitution, on the main grounds that the orders of assessment were without jurisdiction and vitiated by errors apparent on the face of the record. These two writ applications were dismissed summarily by a Bench of this Court by an order dated 23-3-1955. The petitioners now ask for a certificate for leave to appeal to the Supreme Court from the said order of the Bench, dated 23-3-1955. The contention of learned Counsel for the petitioners is that his clients have a right to a certificate under sub-clause (a) or sub-clause (b) of clause (1) of Article 133 of the Constitution.

3. In the two applications for a certificate, Article 132 of the Constitution has also been mentioned, but learned Counsel for the petitioners has frankly conceded that he is not in a position to ask for a certificate under Cl. (1) of Article 132 of the Constitution, because the two writ applications were dismissed ‘in limine’, and it can hardly be said that any substantial question of law as to the interpretation of the Constitution is involved in the dismissal order.

4. Learned Counsel for the petitioners has, however, very strongly contended that his clients have the right to a certificate either under sub-clause (a) or sub-clause (b) of clause (1) of Article 133 of the Constitution. His argument is that the order of the Bench dated 23-3-1955, is a final order in a civil proceeding; and as the amount or value of the subject-matter of dispute in the Court of first instance and still in dispute on appeal is not less than Rs. 20,000/-, his clients have a right to a certificate under Article 133(1)(a) or (b) of the Constitution.

5. The second part of clause (1) of Article 133 of the Constitution states that where the judgment, decree or final order appealed from affirms the decision of the Court immediately below in any case other than a case referred to in sub-clause (c) the High Court must further certify that the appeal involves some substantial question of law.

6. The argument of learned Counsel for the petitioners is that this second part of clause (1) of Article 133 has no application in the present case, because the order of the High Court was passed not in the exercise of its appellate jurisdiction but in the exercise of its original jurisdiction.

7. On behalf of the Income Tax Department learned Counsel for the opposite party has raised a twofold contention; firstly, that the order of the Bench, dated 23-3-1955, is not a final order within the meaning of Cl. (1) of Article 133 of the Constitution; and secondly, that the proceeding was not a civil proceeding.

8. The relevant part of clause (1) of Article 133 of the Constitution states that an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India, if the High Court certifies: (a) that the amount or value of the subject-matter of the dispute in the Court of first instance and still in dispute on appeal was and is not less than Rs. 20,000/-, or (b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value.

9. There is no difficulty about the value of the subject-matter of dispute in these two cases; the value is undoubtedly not less than Rs. 20,000/-. As to whether the order of the Bench dated 23-3-1955, is a final order or not, it seems to me that the order is clearly a final order so far as the two writ applications are concerned.

10. By the order dated 23-3-1955, a Bench of this Court dismissed the two writ applications; therefore, the right of the petitioners to obtain appropriate writs or orders was finally determined by the order, and I am unable to accept the contention of learned Counsel for the opposite party that the order was not a final order within the meaning of olause (1) of Article 133 of the Constitution.

11. Learned Counsel relied on the Full Bench decision in ‘Tobacco Manufacturers (India) Ltd. v. The State’, AIR 1951 Pat 29 (FB) (A). That was, however, a case of a different nature. Their Lordships were considering the question whether a judgment which the High Court pronounced under Section 21(5) of the Bihar Sales Tax Act in regard to questions of law referred to it by the revenue authorities is or is not a judgment in the technical sense of the term.

12. Their Lordships held that a judgment which the High Court pronounces under Section 21(5) of the Bihar; Sales Tax Act is not a judgment in the technical sense of the term, but merely a sort of opinion or advice. The cases under our consideration are, however, different.

13. The applications made to this Court were not applications for a reference to the High Court in the exercise of the advisory jurisdiction of the Court under the Indian Income Tax Act; the applications were writ applications and the order finally disposed of those writ applications. Therefore, in my opinion, the order complained) of was a final order within the meaning of clause) (1) of Article 133 of the Constitution. The first I objection raised on behalf of the Department must, therefore, be overruled.

14. The second objection is that the proceeding in this Court was not a civil proceeding. This is a more difficult question, and on a consideration of the relevant authorities placed before us I am of the view that this objection must be upheld. Learned Counsel for the petitioners has relied on the following decisions.

15. In ‘Gopeshwar Prasad Sahi v. State of Bihar AIR 1951 Pat 626 (B) it was held that the proceeding was a civil proceeding within the meaning of Article 133 of the Constitution when an application for a writ of mandamus to be issued to the Board of Revenue, Bihar, to withdraw from the management of a particular estate and to forbear from retaining charge of the estate was dismissed.

16. The decision was given with regard to the prayers made in the writ application and it was stated that for the determination of the question whether the proceeding was a civil proceeding or not, it was necessary to know what were the questions raised and decided in the proceeding.

17. It was held that the questions raised and decided in the proceeding related to the right of a person to hold and possess his property etc., and though the extraordinary relief given by Article 226 was invoked, the petitioner had the right of an alternative remedy by way of a suit and, therefore, the proceeding was a civil proceeding.

18. In the ‘Bukhtiarpur-Bihar Light Rly Co. Ltd. v. District Board, Patna’, AIR 1952 Pat 23 (C) the question was if proceedings in contempt were civil proceedings. It was observed that proceedings in contempt are anomalous in their nature, possessed of characteristics which render them more or less difficult of ready or definite classification in the realm of judicial power; hence, such proceedings have sometimes been styled ‘sui generis’; but the proceeding for the purpose of leave to appeal to the Supreme Court is a civil proceeding, because the remedy to the petitioner can be given only by way of a civil execution.

19. In ‘Nahar Singh v. State of Rajasthan (S)’, AIR 1955 Raj 56 (D), a decision on which learned Counsel for the petitioners relies, it has been observed that the question whether a proceeding under Article 226 of the Constitution is a civil proceeding or not depends upon the nature of the proceeding.

20. Their Lordships referred to the rules of the Rajasthan High Court, under which writ proceedings are dealt with in two chapters, one dealing with writs of ‘habeas corpus’ or with applications under Section 491 of the Cr PC and the other dealing with all writs under Article 226 of the Constitution. Their Lordships concluded from this distinction made in the rules that writs of ‘habeas corpus’ were criminal proceedings, while all other writs were treated as civil proceedings.

21. Their Lordships were dealing with a case in which the question was whether the Rajasthan Land Reforms and Resumption of Jagirs Act was valid or not. This Court has also made certain rules with regard to writ applications. Those rules will be found in Chapter XXI-C at page 136 of the Rules of this Court. Rule 2 of the said rules reads:

“The application shall be made according to its nature, to a Division Bench hearing Civil or Criminal applications as the case may be, except on any day on which no such Bench is available when it may be made to a Single Judge nominated by the Chief Justice but he shall not pass any final order thereon.”

22. It is true that the said rule talks of only civil, criminal and other proceedings. I do not, however, think that the mere fact that rule 2 of our rules as to the filing of an application for a writ says that such applications should be filed before the Criminal Bench or a Bench hearing civil applications, can be said to determine the nature of a proceeding for the purpose of Article 133 of the Constitution.

23. Article 132 of the Constitution, which precedes Article 133, talks of civil, criminal and other proceedings. It is, therefore, clear that there can be a proceeding which is neither civil nor criminal; and whether a particular writ application is in the nature of a civil proceeding or criminal proceeding or other proceeding will depend on the facts of each case, and, as was observed in AIR 1951 Patna, 626(B) on the questions raised and decided in the proceeding.

24. In the two cases before us, what the petitioners wanted was to set aside certain assessment orders made by the Income Tax authorities. The matter clearly related, to a revenue (proceeding. This question as to whether the proceeding in such a case is a civil proceeding or not was considered by the Full Bench in AIR 1951 Patna, 29(A), to which I have already made a reference. Sarjoo Prasad J., who delivered the leading judgment, said:—

“On the other question as to whether the decision from which the petitioner seeks to appeal to the Supreme Court, arises out of a ‘civil proceeding’, both Reuben and Dass, JJ. seem to be in agreement that it did not, and the contention of Mr. P.R Das that a ‘civil proceeding means and includes all proceedings except those that are criminal does not appear to have found favour with their Lordships.

25. Indeed, as Reuben, J. observed, Article 132 itself contemplates that the High Court may exercise jurisdiction in ‘other proceedings’ besides ‘civil proceedings’ and ‘criminal proceedings’ and the special jurisdiction of the High Court under the taxing Act may be one instance of such ‘other proceedings’ cannot be held to include all proceedings save ‘criminal proceedings’.

26. The learned Government Pleader has contended that proceedings under the taxing statutes stand entirely on a different footing inasmuch as the ruling authority in such cases proceeds to levy taxes in exercise of its sovereign rights.

27. The proceeding, therefore, under the taxing statute cannot be regarded as a ‘civil proceeding’. He relies upon a decision of the Judicial Committee of the Privy Council in — ‘Raleigh Investment Co. Ltd. v. Governor-General in Council’, AIR 1947 PC 78 (E), where it was pointed out that a jurisdiction to question the assessment of income-tax otherwise than by use of the machinery expressly provided by the Act would appear to be inconsistent with the statutory obligation to pay arising by virtue of the assessment.

28. Their Lordships did not lend countenance to the claim of the assessee to question the assessment in a Civil Court on the ground that the assessing officer had taken into account an ‘ultra vires’ provision of the taxing statute. Their Lordships observed that the Act contained the machinery which enabled an assessee to effectively raise the question whether or not a particular provision of the Act bearing on the assessment made upon him is ‘ultra vires’, and the assessee should avail himself of that provision for getting redress against the order of assessment and could not institute a civil suit for the purpose.

29. It may be that this decision may in some respects have to be considered in the light of the fundamental rights vouchsafed under the Constitution Act. But at any rate it is quite clear from this decision that the proceedings under the taxing statutes are something quite different from ‘civil proceedings’.

30. Das, J. if I may say so with respect, has very aptly referred in this context to the decisions of the Supreme Court in — ‘Pritam Singh v. The State’, AIR 1950 SC 169 (F) and — ‘Bharat Bank Ltd. Delhi v. Employees of the Bharat Bank Ltd. Delhi’, AIR 1950 SC 188 (G), which also support the same inference.

31. The provisions of Article 136 of the Constitution Act, indicate that the Supreme Court can grant special leave in civil cases, in criminal cases, in income-tax cases, in cases which come up before different kinds of tribunals and in a variety of other cases. I agree with Das, J. therefore that the observations made in those cases seem to imply that income-tax cases and sales tax cases are not ‘civil proceedings’ within the meaning of the Constitution Act.”

32. It is true that the aforesaid observations were made in connection with a case which had come to the High Court on a reference made under section 21 of the Bihar Sales Tax Act. But, I think, the observations are relevant for the purpose of deciding whether a writ application with regard to an assessment made by the Income-tax authorities is a civil proceeding or not.

33. It seems clear to me that every writ application is not necessarily a civil proceeding; it may 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. It is well settled that a suit would not have been maintainable by the petitioners in respect of the two assessment orders; and if the petitioners had proceeded under the machinery of the Indian Income Tax Act, the proceeding would not have been anything but a revenue proceeding.

34. The mere fact that the petitioners filed two applications for writs in the High Court against the assessment orders, does not, in my opinion, change the nature of the proceeding. I agree with the view expressed by their Lordships of the Rajasthan High Court, which states that the question whether a proceeding under Article 226 is a civil proceeding or not depends upon the nature of the proceeding.

35. In the cases before us, the nature of the proceeding was that it called into question certain assessment orders made by the Income Tax authorities. The proceeding was not a civil proceeding as there was no right of suit, and I do not think it can be said to be a civil proceeding within the meaning of Article 133 of the Constitution.

36. For the reasons given above, I hold that the orders passed in these two cases were not orders passed in a civil proceeding within the meaning of Article 133 of the Constitution. The petitioners cannot, therefore, claim a certificate as of right, either under sub-clause (a) or subclause (b) of clause (1) of Article 133 of the Constitution. No argument has been advanced before us with regard to sub-clause (c) of clause (1) of Article 133 of the Constitution. The applications for a certificate for leave to appeal to the Supreme Court are accordingly dismissed. In the peculiar circumstances of these cases there will be no order for costs.

Imam, J.:— I agree.

H.G.P

37. Applications dismissed.