Neeta S. Shah and Others Vs. Commissioner of Income-tax - Court Judgment

Excerpt:
- code of civil procedure, 1908. order 24, rule 16 & section 146 :[ajit gunjal, j] proceedings by or against representatives - interpretation of section 146 object and scope held, section 146 was introduced for the first time in the code of civil procedure in the year 1908 with the object of facilitating the exercise of rights by persons in whom they came to be vested by devolution or assignment, and being a beneficent provisions should be construed liberally and so as to advance justice and not in a restricted or technical sense. it is always open for the decree holder including the purchasers to execute the decree. on facts held, it is only during the pendency of the execution proceedings, the first decree holder has parted with the property in question. hence, it is not open for the judgment debtors to contend that the first decree holder, having lost title to the property, cannot join hands with the subsequent purchasers in executing the decree. -- karnataka rent control act, 1961.[k.a. no. 22/1961]. section 21(1)(h): eviction proceeding under revision by tenant against order of eviction - undertaking before revisional court to hand over vacant possession of the premises in question if three years time is granted by the landlord -landlord conceded for granting three years time - failure to vacate the premises as per the undertaking contempt proceedings conviction - execution proceedings - gross abuse of the process of the court by the judgment debtor - held, no litigant is permitted to wriggle out of a situation and a solemn undertaking given to the court by way of an affidavit. the courts cannot brook the attitude of the judgment debtors for violating the solemn undertaking given. a litigant when he given an undertaking is bound by it, in all circumstances. the impunity, with which the judgment debtors have defied the law and the undertaking and have put innumerable in the way of the decree holders in getting the possession, to say the least, should be deprecated. this kind of attitude is required to be curbed at the threshold. notwithstanding the conviction in a contempt proceedings, the judgment debtors are perpetuating their high handedness, to say the least, nothing but gross abuse of the process of the court. petition dismissed with cost of rs. 25,000/-.k. shivashankar bhat, j. 1. the following question of law is referred under section 256(2) of the income-tax act, 1961 : 'whether, on the facts and in the circumstances of the case, the tribunal was justified in invoking the provisions of section 254(2) of the income-tax act, 1961 ?' 2. the history other case is more cumbersome, while the question of law referred is quite simple. 3. in earlier proceedings, this court held that the income from the building held by the assessees as co-owners should be assessed in the hands of the assessees individually according to their respective shares; however, in respect of the income from letting of the air-conditioning plant, the same was to be assessed as the income of an association of persons. 4. in the meanwhile, there were several consequential proceedings before the income-tax officer and, ultimately, the revenue invoked the jurisdiction of the appellate tribunal to rectify its order, so that, an appropriate assessment could be made under section 86(v) of the act against the assessees individually. for this purpose, section 254(2) was invoked on the ground that there was a mistake apparent from the record, inasmuch as, assessees being members of an association of persons, the share of each assessee in the income of the association of persons has to be computed as provided under section 86(v). this was to be done, in consequence of the decision of this court in the earlier references, read with certain clarification given by the court, by virtue of a decision rendered earlier in writ petition no. 5985 of 1974. 5. the assessees contended that there was no mistake apparent from record which alone empowers the tribunal to rectify its earlier order; in this regard two aspects were relied on : (1) the rectification is sought by virtue of a subsequent decision of the high court and the decision involves elaborate arguments and investigation of facts. (2) the tribunal cannot travel beyond its own record pertaining to each of the assessees. 6. the question of elaborate arguments or investigation of facts actually does not arise here. the identification of the effect of the law applicable to the assessees and the association of persons, as decided by this court on the earlier occasion, does not involve any complicated or elaborate reasoning; to the proved facts, the law has to be applied and even then, no difficulty arises having regard to the clear language of section 86(v). 7. the assessees are also not right in contending that the tribunal is confined to the actual record before it and it cannot refer to the supplemental or complementary proceedings as if the proceedings pertaining to the assessees individually should be considered in isolation from the proceedings pertaining to the association of persons. from he admitted facts, it is clear that both proceedings are closely connected and were interdependent. 8. the width of the concept of 'mistake apparent from the record' can be understood by referring to three decisions. 9. in maharana mills (pvt.) ltd. v. ito : [1959]36itr350(sc) , the supreme court held that 'record' does not mean only the order of assessment but 'it comprises all proceedings on which the assessment order is based' and that, while exercising the power of rectifications, the whole evidence and the law applicable thereto can be looked into. 10. in kil kotagiri tea and coffee estates co. ltd. v. itat : [1988]174itr579(ker) , the kerala high court had to consider whether the law interpreted and declared by the high court can be the basis to invoke the power of rectification. the high court pointed out that while interpreting the law, the court does not make the law, but declares its meaning which is always deemed as the meaning that existed even earlier and, therefore, the revenue can rectify the mistake by reference to the subsequent declaration of the law. the bench held thus at page 584 : 'an order of assessment, based upon an interpretation or application of law which is ultimately found to be wrong in the light of judicial pronouncements rendered subsequently, discloses a mistake apparent from the record. when the court decides a matter, it does not make the law in any sense but all it does is that it interprets the law and states what the law has always been and must be understood to have been. where an order is made by an authority on the basis of a particular decision, the reversal of such decision in further proceedings will justify a rectification of the order based on that decision.' again at page 585 : 'a binding decision rendered by a court is always retrospective and the decision which is overruled was never the law. the overruling decision should be deemed to have been in force even on the day when the order sought to be rectified was passed. we are further of the view that the appellate tribunal was in error in holding that the subsequent decision of the high court has no retrospective operation as in the case of subsequent legislation or the decision of the supreme court. a subsequent binding decision of the supreme court or of the high court has retrospective operations and overruling is always retrospective.' 11. in cit v. shakuntala rajeshwar [1985] 160 itr 840, the delhi high court had to consider almost an analogous case on facts and, in connection with the scope of the power of rectification, held that when the earlier order of the tribunal was founded on a mistaken assumption and the error is discovered, power under section 254(2) can be invoked. the very basis of the earlier orders required rectification. 12. in view of the foregoing, we have no hesitation to answer the question referred to us in the affirmative and against the assessees. 13. references answered accordingly.