indus Engineering Co. and anr. Vs. Asstt. Cit and ors. - Court Judgment

Excerpt:
- section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - 10. under these circumstances we are clearly of the opinion that there is no merit in this petition.f.i. rebello, j.1. the petitioners have approached this court against the order dated 18th dec, 1992 in respect of the penalty imposed under section 271(1)(c) of the income tax act. we are concerned with the assessment year 1985-86. the assessee had filed return of income for 1985-86 on 1-10-1985 which was subsequently revised.2. action under section 133a was conducted on 30-6-1987 at office and factory premises of assessee. the same was converted into search and seizure action. in the course of search and seizure action, apart from undisclosed stock, havala loans to the tune of rs. 36,05,000 were admitted by the assessee. out of these havala loans, the loans to the extent of rs. 10,65,000 pertained to assessment year 1985-86 and, therefore, the same was taxed as income of assessment year 1985-86 along with interest claimed by the assessee on these loans.3. commissioner (appeals) vide letter dated 19-12-1988 confirmed the addition on account of bogus loan and disallowed the interest. the order of commissioner (appeals) has been accepted by the assessee.4. proceedings for penalty under section 271(1)(c) were initiated. after considering the submissions, penalty was imposed to the tune of rs. 6,75,657. it was contended by the petitioners before the cit in the application under section 264, that the declaration under section 132(4) was made, to cover up some discrepancies consisting of some alleged excess stock and unproved loan creditors amounting to rs. 36.05 lakhs. it was, therefore, pleased (pleaded) that the penalty imposed under section 271(1)(c) should be waived treating this part of the loan disallowed as part of total declaration made under section 132(4) on which all the taxes have been paid. it was further submitted by letter of 26-11-1992 that the petitioner had offered the loans as other income voluntarily under section 132(4) and had disclosed the loan of rs. 10,65,000 as other income for assessment year 1988-89. it was submitted that there was no concealment of income and, therefore, the penalty should be waived.5. the cit after considering the contentions observed that the petitioner had accepted the order of commissioner (appeals) for assessment year 1985-86. it was further observed that it cannot be disputed that the loan of rs. 10,65,000 and the interest thereon was liable to be taxed for income for the assessment year 1985-86. in the original return filed by the assessee and also in the subsequent revised return the assessee had not disclosed this income. the concealment of income was detected by the department during the course of search and seizure action. the assessee had made a declaration under section 132(4) but it does not entitle the petitioners to immunity from the penal provisions.6. penalty, could be waived if the case is covered by expln. 5 of section 271 of the act. since the income pertained to the previous year which has ended before the date of search and the assessee has also filed the return before the said date without disclosing the income due to havala loans and interest thereon, the immunity available under expln, 5 is not available to the assessee. the application under section 264 was rejected.7. at the hearing of this petition, on behalf of the petitioners learned counsel has reiterated the said contentions and has further submitted that the income was subsequently offered to tax. it is submitted that under these circumstances the respondents acted without jurisdiction in imposing penalty.*8. this is not a case of want of jurisdiction. this is a case where the petitioners were unable to make out that the case fell within expln. 5 to section 271(1)(c). the requirement to fall within the explanation is not only admission by the petitioner in his statement, but what has been set out by the cit. the petitioners were further bound to disclose the source of their income. under these circumstances the explanation is not attracted. learned counsel had referred to us the judgment in the cases of sir shadi lai sugar & general mills ltd. and anr. v. cit : (1987) 64 ctr (sc) 199 : (1987) 168 itr 705 (sc), cit v. suresh chandra mittal : (2001) 251 itr 9 (sc), cit v. chhabra emporium : (2003) 264 itr 249 (del) as also in the case of cit v. radha kishan goel : (2005) 278 itr 454 (all) and some other judgments which we need not go through.9. the cit has recorded a finding of fact that the transactions were disclosed in the course of search. the income was in respect of assessment year1985-86. the search was conducted on 30-6-1987. apart from that the cit noted that neither in the original return nor in the revised return the petitioner had disclosed the income. it was, therefore, a clear case of concealment of income. insofar as the issue pertaining to expln. 5, as we have earlier pointed out, the petitioner did not disclose the manner in which such income had been derived.10. under these circumstances we are clearly of the opinion that there is no merit in this petition. rule discharged. there shall be no order as to costs.