Dayaram Agarwal Vs. Ito - Court Judgment

Excerpt:
counsels: b.m. patnaik, r. sharma, s.s. samanta, s. mohanty and a. mishra, for the petitioner in the orissa high court p.k. balasubramanyan, c.j. & a.s. naidu, j. - sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 7452 of 2001 in this court earlier, challenging the order of assessment as well as impounding of the books of account and for supply of the certified copies of the statement recorded and the list of the inventory taken.p.k. balasubramanyan, c.j.the premises of the assessee, the petitioner herein, was surveyed on 9-2-2000 by the income tax officer under section 133(a) of the income tax act, 1961 (hereinafter referred to as the 'act'). the petitioner thereafter was issued a notice under section 131 of the act calling upon the petitioner, the assessee, to appear before the concerned authority along with his books of account. the assessee appeared and sought time to produce the books of account. the proceeding was adjourned to 14-2-2002. on that date, according to the petitioner, he had taken the books of account with him. he also made an application for copies of the statement recorded from the son of the assessee on the date the premises of the assessee was surveyed and also for a copy of the list of inventory taken on that date. they were not furnished to the assessee. according to the department, they were not furnished to the assessee since the assessee had not made an appropriate application for the copies after remitting the requisite fees in that behalf. since the stand adopted by the department is that if the assessee complies with the requirements and makes an appropriate application, the copies will be issued, that aspect need not detain this court further.2. it is seen from the writ petition that the petitioner had filed ox no. 7452 of 2001 in this court earlier, challenging the order of assessment as well as impounding of the books of account and for supply of the certified copies of the statement recorded and the list of the inventory taken. this court disposed of the writ petition with the observation that since the impugned order therein was appealable, it was for the petitioner to invoke that statutory remedy. this court did not grant any relief to the petitioner regarding the impounding of the books of account, the non-supply of certified copies of the statement and the list of inventory. according to the petitioner, he has filed appeal against the order of assessment. since the order impounding the books of account and the request to issue the certified copies of the statement recorded and the list of inventory prepared when the survey was made, was not appealable, the assessee submits that he has again filed the present writ petition.3. in our view, the petitioner might and ought to have pressed the challenge to the order impounding the books of account and not giving of copies of statement of the son of the petitioner recorded at the time of survey and the list of inventory prepared on that occasion, and sought an adjudication of those aspects. he not having done so, really, the petitioner is barred from filing the present writ petition for those reliefs since he does not have the right to file yet another writ petition on a cause of action already put forward in the earlier writ petition, unless he was specifically given the liberty to do so. there is no plea that any such liberty was reserved in favour of the writ petitioner.4. though there are some disputes regarding the factual details, the broad facts are that the premises of the petitioner was surveyed, the statement of the son of the petitioner was recorded since the petitioner was not available in the premises at that time and some stock inventory was taken. the point projected on behalf of the department is that it was not a complete inventory. it is thereafter, that the assessee was directed to produce the books of account and the books of account were impounded. it is the case of the department that the concerned statutory authority had permitted the assessing officer to keep the books of account impounded until completion of the assessment. it is contended that the assessments for the years other than the year 1998-99 are yet to be completed.5. counsel for the petitioner relied on a decision of the high court of rajasthan in maruti mills (p) ltd. v. union of india . it is laid down in that decision that the income-tax authorities cannot impound the books of account and other documents during the course of a survey. here, in the case on hand, the books of account were not impounded at the time of the survey under section 133a of the act. subsequent to the survey and before completion of the assessment, the assessee was called upon to produce the books of account in apparent exercise of power under section 131 of the act. hence the impounding cannot be held to be per se illegal.6. for the purpose of this, we do not think it necessary to discuss the law in detail, and to consider the inter-play of sections 131, 132 and 133a of the income tax act. here, the books of account were taken possession of on 23-3-2000 and they are being retained with the assessing officer even on the date of the hearing of the writ petition. we think that on the facts and in the circumstances of this case, the authority has had the reasonable opportunity to verify the books of account and there is no justification in retaining the books of account indefinitely, whatever might be the extent of power available to the assessing officer with the permission of the superior officer concerned. we, therefore, direct the opposite parties to return the books of account to the assessee by 30-11-2002. in other words, the opposite parties are directed not to retain the books of account of the assessee impounded on 23-3-2000 beyond 30-11-2002.the writ petition is allowed to the above extent.