Commissioner of Income-tax Vs. Wazir Singh - 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. ashok bhan, j. 1. for the assessment year 1974-75, at the instance of the commissioner of income-tax, rohtak, the following question of law has been referred to this court for opinion by the income-tax appellate tribunal, chandigarh :' whether, on the facts and in the circumstances of the case, the tribunal was right in law in affirming the order of the appellate assistant commissioner deleting addition of rs. 29,601 ?'2. the income-tax officer made an addition of rs. 29,601 to the income of the assesses, on the basis of his order passed under section 171 of the income-tax act, 1961 (hereinafter referred to as 'the act'), rejecting the partial partition of the bigger hindu undivided family.3. against the order of the income-tax officer passed under section 171 of the act, the assessee had filed an appeal before the appellate assistant commissioner. the appeal was accepted, against which the department filed an appeal before the tribunal. the tribunal upheld the order of the appellate assistant commissioner, against which the department claimed a question of law which was referred to this court for its opinion. the question referred to this court was answered in the negative, i.e., against the revenue and in favour of the assessee. it was accepted that there was a partial partition in terms of section 171 of act with effect from april 1, 1973. the aforesaid judgment is in cit v. wazir singh .4. in the present case, as stated above, the income-tax officer made an addition of rs. 29,601 to the income of the assessee, on the basis of hisearlier order passed under section 171 of the act. the tribunal, on the basis of its order relating to partial partition under section 171 of the act, reversed the order of the income-tax officer and deleted the addition made by the income-tax officer. it was held that since the partial partition of the bigger hindu undivided family was accepted, the addition made of rs. 29,601 in the hands of the assessee on account of the determined share from prabhu singh tirlok singh grover could not be sustained.5. in view of the decision of this court in wazir singh's case the matter stands concluded between the parties. the partial partition of the bigger hindu undivided family has already been accepted. the addition made, under the circumstances, could not be sustained. the question referred to us is, therefore, answered in the affirmative, that is, against the revenue and in favour of the assessee. no costs.