Balwant Singh Bhangal Vs. Income Tax Officer and anr. - Court Judgment

Excerpt:
- 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. 1. counsel for the petitioner points out that a refund voucher no. dit-021/d 351846, dt. 21st april, 2003, for rs. 1,79,993 has been issued by the department on account of rs. 68,984 as principal and rs. 1,11,009 towards interest under section 244(1a) of the it act, 1961. he claims that some interest under section 220(2) of the act was also paid which has not been refunded. he has, however, not been able to give particulars of such payment. in case he has some evidence in this behalf, he may make representation to the department enclosing therewith evidence of such payment and the department shall then consider his claim for refund on merits and in case he is found entitled to any refund, issue the same within one month.2. before parting we record our anguish at the way the department is functioning. it is unfortunate that an assessee, who is entitled to refund has to approach the high court. his grievance has not been redressed even by the so-called grievance cell which has been created by the departmental authorities to help the assessees.3. while disposing of this writ petition in the above terms, we are of the view that the assessee petitioner deserves to be compensated at least qua the costs. the same are assessed at rs. 2,500 and shall be borne personally by the official who is found to be responsible for causing the delay. the cit, jalandhar-ii, shall conduct the necessary inquiry in this behalf and fix the responsibility. he shall complete the exercise within one month from the date of the receipt of the certified copy of this order. office is directed to supply a copy of this order to the cit, jalandhar-ii, for necessary compliance.