Paras Kumar JaIn Vs. Cit - Court Judgment

Excerpt:
counsels: piyush agrawal, for the assessee q prakash krishna, for the revenue in the allahabad high court s.k. sen, c.j. & ashok bhushan, j. - land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. orderat the instance of assessee the income tax appellate tribunal has referred the following questions of law to this court for its opinion :'1. whether on the facts and in the circumstances of the case, the appellate tribunal was right in law in holding that the share income of the assessee's wife and minor children from the firm in which assessee was also a partner not as an individual but as karta of the family, could be clubbed with the assessee's income under section 64(1)(iii) of the income tax act, 1961 ?2. whether on the facts and in the circumstances, the appellate tribunal was right to hold that the assessee was duty bound to disclose share income of wife and minor children in his return of income or during the course of assessment and since it was not done, initiation of proceedings under section 147(a) was according to law ?'we have heard sri piyush agrawal, learned advocate for the assessee and sri prakash krishna, learned advocate appearing for the revenue and have perused the records of the case.in view of the judgment and decision of the supreme court in the case of cit v. shri om prakash : [1996]217itr785(sc) , we answer the question no. 1 referred to, in negative and decide the reference in favour of the assessee and against the revenue. since question no. 1 has been decided, question no. 2 does not survive.the reference is, accordingly, disposed of.

Judgment:
ORDER

At the instance of assessee the Income Tax Appellate Tribunal has referred the following questions of law to this court for its opinion :

'1. Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that the share income of the assessee's wife and minor children from the firm in which assessee was also a partner not as an individual but as karta of the family, could be clubbed with the assessee's income under section 64(1)(iii) of the Income Tax Act, 1961 ?

2. Whether on the facts and in the circumstances, the Appellate Tribunal was right to hold that the assessee was duty bound to disclose share income of wife and minor children in his return of income or during the course of assessment and since it was not done, initiation of proceedings under section 147(a) was according to law ?'

We have heard Sri Piyush Agrawal, learned Advocate for the assessee and Sri Prakash Krishna, learned Advocate appearing for the revenue and have perused the records of the case.

In view of the judgment and decision of the Supreme Court in the case of CIT v. Shri Om Prakash : [1996]217ITR785(SC) , we answer the question No. 1 referred to, in negative and decide the reference in favour of the assessee and against the revenue. Since question No. 1 has been decided, question No. 2 does not survive.

The reference is, accordingly, disposed of.