Commissioner of Income-tax Vs. Hazari Mal Kuthiala and Co. - 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. - in our opinion, the order passed by the tribunal suffers from a patent illegality because it not only failed to examine the legality and correctness of the order passed by the assessing authority as well as the appellate authority but decided the case only on the basis of conjectures. the order passed by the appellate authority is well reasoned and is supported by the facts placed on record.g.s. singhvi, j. 1. the assessee is a forest lessee. during the assessment year 1972-73, it had exploited tandai forest and launched 33,673 pieces of timber in the river out of which 31,321 pieces were shown as recovered. the river loss claimed by the assessee was 7 per cent. (2,352 pieces). the assessing authority did not agree with the contention of the assessee regarding river loss and reduced the river loss from 7 per cent. to 4 per cent. the assessing authority disallowed the excessive loss of 1,006 pieces. the total amount disallowed by the assessing authority was rs. 25,150. accordingly, the assessing authority directed the addition of rs. 25,150 in the income of the petitioner. the appellate authority before whom the assessee filed an appeal came to the conclusion that the total loss was only 3 per cent. as against 7 per cent. claimed by the assessee and 4 per cent. allowed by the assessing authority. consequently, the appellate authority not only upheld the addition of rs. 25,150 but also enhanced the income of the assessee by rs. 8,500.2. dissatisfied with the order of the appellate authority, the respondent filed an appeal before the income-tax appellate tribunal which reversed the orders of the assessing authority and the appellate authority and deleted the addition of rs. 33,650 made by the appellate assistant commissioner.3. a reference petition filed by the revenue was dismissed by the tribunal but pursuant to an order dated august 23, 1980, passed by this court in i. t. c. no. 48 of 1976, the tribunal referred the following question for the opinion of the high court :'whether, on the facts and in the circumstances of the case, the tribunal was right in allowing river loss at 7 per cent. for the assessment year 1972-73 when on actual calculation the loss after taking into account both the launches together, is less than 3 per cent. ?'4. shri s.s. mahajan, learned counsel appearing for the revenue, argued that the finding recorded by the tribunal is patently perverse because it is not based on any evidence. shri mahajan pointed out that the tribunal has arbitrarily relied on the assessment of previous years. according to learned counsel, the tribunal ought to have examined the legality of the orders of the assessing authority and the appellate assistant commissioner on the basis of the facts brought on record in regard to the disputed assessment year, i.e., 1972-73.5. after having gone through the record of the case we find substance in the argument of shri mahajan that the order passed by the tribunal suffers from a patent illegality. it is borne out from the record that the assessee had made two launches of 57,716 pieces on november 19, 1970, and 24,034 pieces on january 21, 1971. the first launching was received during the year 1972-73 whereas the second launching was received in 1973-74 and the total loss was only 1,619 pieces whereas the assessee had claimed loss of 2,352 pieces during the year 1972-73 itself. after taking this patent difference in the claim made by the assessee and the actual loss suffered by him, the appellate authority concluded that the claim made by the assessee for deduction was unfounded. while reversing the order of the appellate assistant commissioner, the tribunal has not referred to any error in the order of the assessing authority or the appellate authority but decided the issue on mere conjecture by observing that in the past the river loss allowed by the department was between 15 per cent. and 25 per cent. and for the assessment year 1966-67 river loss of 20 per cent. was allowed. only on that premise, the tribunal accepted the claim of the assessee for deduction of the loss to the tune of 7 per cent. in our opinion, the order passed by the tribunal suffers from a patent illegality because it not only failed to examine the legality and correctness of the order passed by the assessing authority as well as the appellate authority but decided the case only on the basis of conjectures. the order passed by the appellate authority is well reasoned and is supported by the facts placed on record. therefore, we hold that the assessee was not entitled to the river loss at 7 per cent. for the assessment year 1972-73 and the appellate authority rightly allowed river loss to the extent of 3 per cent. only.6. in the result, we allow the petition and answer the question in favour of the revenue and against the assessee.