Mohd. Hanif and ors. Vs. Commissioner of Wealth Tax. - Court Judgment

Excerpt:
- constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - 70,85,990 on account of payment of bonus amount as well as a provision for payment under the bidi and cigar act. it was found that ultimately, some of the reserves which was kept for payment of bonus amount as well as for payment under the bidi & cigar act to the workers, was utilised by the firm in business. bidi & cigar act and bonus act, is concerned, the assessee is entitled the same as per law, but the assessee/applicants have failed to lead the evidence to satisfy the wto that they are entitled to rebate of the amount in their liability for payment of wealth-tax. therefore, on the factual aspect, the authorities were satisfied that this is a ghost debt and declined to allow this rebate while assessing the taxing liability of the assessee-firm under the wt act. it appears that the assessee created a ghost of this item in books as a mercantile practice and continued this ghost debt owed by the assessee for years together and enjoyed this corpus and utilising the same in its business. but the assessee failed to satisfy the assessing authority that how this amount is due to which worker. this only indicates that, in fact, the assessee created this ghost and enjoyed the corpus and succeeded before the authority under the it act that the assessee is entitled to rebate under s. but this was denied by the authority under the wt act as on their probing it was found that the assessee has failed to point out the names of the workers to whom debt is due. the assessee has also failed to point out that whether any litigation pertaining to this amount under the bidi and cigar act or under payment of wages act, 1936 is pending anywhere or the authority created under the payment of bonus act, but nothing of this sort was pointed out. in the present case, the assessee has failed to produce before the authorities the material to show that the assessee-firm really owed this debt for payment under the bidi and cigar act and also under the bonus act, then it is open for the authority under the wt act to examine the matter factually that the assessee-firm is entitled to the benefit of this rebate as debt owed under both these enactments and on their factual enquiry, it is found that the assessee has only created a ghost of this debt owed by it; but it has failed to point out that how this debt is owed by the assessee against which worker and which worker has claimed the same through any legal process or not. but the assessee has failed to satisfy the authorities about the bona fides of these debts being due or owed by the assessee, therefore, the wt authorities have rightly recorded their finding. tankha, learned counsel appearing for the revenue, has submitted that so far as the legal proposition is concerned, there is no two opinion and it is accepted on all hands that if any debt is owed by the assessee under any enactment then the assessee is entitled to rebate of that debt as the debt owed by him be present or past liability or in some of the cases, their lordships have gone to the extent even a bad liability also. but, again, the question is that whether the assessee has satisfied the authority that the debt owed by him under the enactments is existing or not or it is only ghost created by him for rebate. but, in the present case, the assessing authority and the tribunal have found that the assessee has failed to establish that debt is owed by him. hence, we do not find any reason to take a different view from the view taken by the assessing authority as also by the tribunal which is well justified and both the aforesaid questions are answered in favour of the revenue and against the assessee.by the court :all these aforesaid three references involve common questions of law, therefore, they are disposed of by a common order :2. for the convenient disposal of all these aforesaid three reference, the facts given in mcc no. 270/87 (mohd. hanif & ors.) are taken into consideration.3. this is a reference under s. 27(1) of the wt act, 1957 (hereinafter referred to as the act) made by the tribunal at the instance of the assessee and the following two questions have been referred for answer to this court by the tribunal, which read as under :'(1) whether the tribunal did not err in law in labelling sum of rs. 73,60,451 (correct amount being rs. 73,80,736) standing to the accounts of minimum wages amanat a/c bonus amanat a/c and bidi cigar act amanat a/c as reserves of the firm m/s kale khan mohd. hanif and consequently including in the net wealth of the assessee his proportionate entitlement in the said alleged reserves ?(2) whether the tribunal did not err in not allowing his the proportionate sum of rs. 8,79,688 in the case of mohd. hanif, rs. 6,59,766 in the case of mohd. ikram, rs. 7,33,073 in the case of mohd. aziz, rs. 6,59,766 in the case of mohd. wasim, rs. 5,13,151 in the case of mohd. sabir, rs. 5,13,151 in the case of shri mohd. ayaz and rs. 5,13,151 in the case of shri mohd. ayar standing to the credit of minimum wages amanat a/c, bonus amanat a/c and bidi cigar amanat act a/c as debt owed by the firm m/s kale khan mohd. hanif while computing the assessable wealth of the assessee partner ?'4. the relevant period to the asst. yr. 1976-77, for which these seven reference applications have been filed. it is pointed out that identical issues arose in the case of the partners of m/s kale khan mohd. hanif for the asst. yr. 1977-78 and reference in those cases have also been made by the tribunal before this court, which is covered under the aforesaid questions. the assessee/applicants are partners of the firm m/s kale khan mohd. hanif, which was constituted by a partnership deed dt. 29th oct., 1974. this was a very old firm, though there had been a change in the constitution of the firm from time to time.5. the firm was assessed for the income-tax purpose also and in that assessment order, the firm claims certain deduction under s. 36(1)(ii) of the it act for payment of works under the bidi & cigar workers act and under the payment of bonus act. it was held that the assessees applicants incurred the liabilities under the aforesaid acts; therefore, they are qualified to deductions. the matter reached to the high court and it was disposed of by the high court upholding the deductions in the case of kale khan mohd. hanif vs. cit (1981) 25 ctr (mp) 120 and addl. cit vs . kalekhan mohd. hanif : [1978]114itr812(mp) . it was submitted that the assessee-firm was also entitled to rebate under the wt act.6. the brief facts which are necessary for disposal of these reference, are that the assessee-firm deals in manufacture of bidi and they are governed by the bidi and cigar workers (conditions of employment) act, 1966, and rules made thereunder. under this act, it is obligatory for any manufacturer of bidis to pay to its workers (including its contract workers) wages at half-rate for reject bidis and wages for weekly and annual leave. the firm mainly gets its manufacturing work done through sub-contractors, who are called sattedars on piece-wages basis. these sattedars obtain the raw materials from the firm for distribution to workers and supply the manufactured bidis to the firm, the amounts which were payable under the above act, were in fact not paid by the firm. it, however, made provisions for payment of the wages for rejected bidis and the leave wages under the above act and claimed the same as expenditure in it assessments of the relevant year on mercantile basis of accountancy. similarly, the assessee firm is also under an obligation to pay the bonus to the workers under the payment of bonus act and, therefore, the assessee-firm claimed the deduction for payment of bonus to its workers. though both these deductions were permitted under the it act, but while assessing the liability on the assessee-firm under the wt act, the assessing authority declined to grant this deduction. for the asst. yr. 1976-77, the assessee kept the amount to the tune of rs. 70,85,990 on account of payment of bonus amount as well as a provision for payment under the bidi and cigar act. but no worker or person concerned claimed any share or portion on account of any such provision and the amount was never paid to the workers. it was found that ultimately, some of the reserves which was kept for payment of bonus amount as well as for payment under the bidi & cigar act to the workers, was utilised by the firm in business. therefore, the assessees share in this provision was taxed accordingly and the tax liability under the wt act was work out and no rebate of this debt owed under s. 2(m)(iii) of the wt act was given.7. the assessee-firm filed an appeal before the tribunal and the tribunal upheld the order of the assessing authority. hence the assessee-firm moved the tribunal for making reference of the aforesaid questions and the tribunal had accordingly referred both the aforesaid questions for answer of this court.8. the tribunal did not dispute the legal position and held that so far as the liability under these acts, i.e. bidi & cigar act and bonus act, is concerned, the assessee is entitled the same as per law, but the assessee/applicants have failed to lead the evidence to satisfy the wto that they are entitled to rebate of the amount in their liability for payment of wealth-tax. the tribunal found that it is not known whether the persons for whose benefit these liabilities are being carried over from year to year and whether that liability is still in existence as on the relevant valuation date or not. it is also found that whether the actual claimants are even aware of their entitlement against the firm. no payment have actually been made so far and no steps have been taken to discharge these liabilities. it was pointed out that the funds in question amounting to rs. 75 lacs have remained invested in the day to day business of the firm and are in its productive deployment. it was also observed that the firm has not separately invested the same in any earmarked assets. it was observed that though the rebate was given to the assessee under s. 36(1)(ii), but when the matter came before the wt authority, the wt authority insisted for proof that whether the amount which has been reserved for payment of wages act and under the payment of bonus act is really due to workers or not. but no evidence was produced and only the assessee-firm have, as per the mercantile practice, filed this amount towards the payment of the statutory liability under the aforesaid enactments and carried on for years to years and then utilised this amount for their own purposes. therefore, on the factual aspect, the authorities were satisfied that this is a ghost debt and declined to allow this rebate while assessing the taxing liability of the assessee-firm under the wt act. it is true that if that has been accrued and owed by the assessee, then on the valuation date, the assessee-firm is entitled to rebate of this tax from his net wealth. but the question is that whether factually any material has been placed by the assessee to show that this debt has been owed by the assessee on the valuation date or not. it appears that the assessee created a ghost of this item in books as a mercantile practice and continued this ghost debt owed by the assessee for years together and enjoyed this corpus and utilising the same in its business. when the wto insisted for a material to show that in fact, who are the workers to whom this debt is owed by the assessee, no material was placed nor it was pointed out the name of any person whom the debt is due by the assessee nor any step was taken by the assessee for these long years to discharge this liability. simply, from time to time, the assessee created this amount under the so called mercantile practice of accountancy for keeping this amount reserved for payment of statutory liability under the bidi & cigar act or under the bonus act. but the assessee failed to satisfy the assessing authority that how this amount is due to which worker. from these facts, it appears that this amount has been piled up for long years and the assessee has been enjoying the corpus in his own business. this only indicates that, in fact, the assessee created this ghost and enjoyed the corpus and succeeded before the authority under the it act that the assessee is entitled to rebate under s. 36(1)(ii) of the it act of this debt. but when the matter came before the wt authority, the assessee only contended on the basis of the assessment orders of the it authorities and claimed a rebate of this amount also as a debt owed by the assessee on the valuation date. but this was denied by the authority under the wt act as on their probing it was found that the assessee has failed to point out the names of the workers to whom debt is due. the assessee has also failed to point out that whether any litigation pertaining to this amount under the bidi and cigar act or under payment of wages act, 1936 is pending anywhere or the authority created under the payment of bonus act, but nothing of this sort was pointed out. this left no alternative to the wto except to decline the rebate of the so called debt owed by the assessee on the valuation date.8. it is true that the assessee/applicants have succeeded in getting this deduction under the it act before this court also in cases referred to above, but nonetheless, the authority under the wt act, cannot be prevented from finding out the correct factual position. the assessment made by the assessing authority under the it act does not necessarily mean that the authority under the wt act are bound by the same. both the authorities are at free to assess the liability of the assessee under the aforesaid enactments. in the present case, the assessee has failed to produce before the authorities the material to show that the assessee-firm really owed this debt for payment under the bidi and cigar act and also under the bonus act, then it is open for the authority under the wt act to examine the matter factually that the assessee-firm is entitled to the benefit of this rebate as debt owed under both these enactments and on their factual enquiry, it is found that the assessee has only created a ghost of this debt owed by it; but it has failed to point out that how this debt is owed by the assessee against which worker and which worker has claimed the same through any legal process or not. simply recording in its book of account will not be conclusive of the matter. in support thereof, the learned counsel for the revenue has invited our attention to the case of kedarnath jute mfg. co. ltd. vs . cit : [1971]82itr363(sc) , and it was observed :'whether the assessee is entitled to a particular deduction or not will depend on the provision of law relating thereto and not on the view which the assessee might take of his rights; nor can the existence or absence of entries in his books of account be decisive or conclusive in the matter.'therefore, it is open for the authorities to make a factual enquiry to find out that whether this debt is really owed by the assessee or not under the aforesaid enactments, i.e. bidi & cigar act and the bonus act. but the assessee has failed to satisfy the authorities about the bona fides of these debts being due or owed by the assessee, therefore, the wt authorities have rightly recorded their finding.9. so far as the legal proposition is concerned, there is consensus of opinion of all the high courts that the assessee is entitled to such rebate of debts due from net wealth. in this connection, a reference has been made to cit vs . sugauli sugar works p. ltd. : [1983]140itr286(cal) , cwt vs . raipur mfg. co. ltd. : [1964]52itr482(guj) , cwt vs . harrison & crossfield ltd. : [1964]54itr587(ker) , kesoram industries & cotton mills ltd. vs . cwt : [1966]59itr767(sc) , cwt vs . prema laxman : [1984]150itr170(ker) and cit vs. sadul textiles ltd. (1987) 167 itr 634.10. shri v. k. tankha, learned counsel appearing for the revenue, has submitted that so far as the legal proposition is concerned, there is no two opinion and it is accepted on all hands that if any debt is owed by the assessee under any enactment then the assessee is entitled to rebate of that debt as the debt owed by him be present or past liability or in some of the cases, their lordships have gone to the extent even a bad liability also. but, again, the question is that whether the assessee has satisfied the authority that the debt owed by him under the enactments is existing or not or it is only ghost created by him for rebate. but, in the present case, the assessing authority and the tribunal have found that the assessee has failed to establish that debt is owed by him. simply, it has been recorded in the account books according to mercantile practice of accountancy, that this amount is due, but to whom it is due and how it is due, that has not been established by the assessee-firm. therefore, the authority under the wt act has found that this was only a ghost created by the assessee in order to get the rebate of so called debt owed by him and carried on this ghost for years together, till they were caught napping and asked to produce the evidence for the same. therefore, from these facts, it is apparent that the assessee has only created a ghost whereas no such liability exists and, accordingly, the authority under the wt act has declined the benefit under s. 2(m) of the wt act.11. shri b. l. nema, learned counsel for the assessee, has also submitted that no action under s. 41(1) of the it act was taken by the it department, if they have found that the debt due to the assessee is not there. but suffice it to say that the tribunal had adverted to this question in its order dt. 30th may, 1986 while concluding. it has observed :'it is high time that the revenue should consider taking remedial measures in it assessments by invoking the provisions of s. 41(1) of the it act.'therefore, simply because, the department has not woken up to its responsibility that does not mean that the assessee is entitled to escape the net of liability under the wt act. hence, we do not find any reason to take a different view from the view taken by the assessing authority as also by the tribunal which is well justified and both the aforesaid questions are answered in favour of the revenue and against the assessee. likewise, both the references (mcc no. 142/87 and mcc no. 268/87) are also disposed of accordingly, and the questions referred therein are answered in favour of the revenue and against the assessee.