Kuku Rice Mills and ors. Vs. Assessing Authority-cum-income-tax Authority 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. - 3,13,486. the firm was not satisfied with this order and filed an appeal before the commissioner of income-tax (appeals). the commissioner, vide annexure p-l, reduced the additional demand to rs. 1,02,617. although the demand was met by the firm, still not satisfied, a further appeal was filed before the income-tax appellate tribunal which is stated to be pending. however, it is left to the income-tax officer to be satisfied if opportunity of hearing be given to allow extension of time for a limited period.1. the only question involved in this writ petition is as to whether, while considering the application purported to have been filed under section 220(3) of the income-tax act, 1961, the income-tax officer was required to give an opportunity of hearing to the assessee before declining to grant the relief asked for.2. m/s. kuku rice mills, petitioner no. 1, filed the return under the income-tax act for the assessment year 1988-89. the income-tax officer acting under section 143(3) of the act raised additional demand of rs. 3,13,486. the firm was not satisfied with this order and filed an appeal before the commissioner of income-tax (appeals). the commissioner, vide annexure p-l, reduced the additional demand to rs. 1,02,617. although the demand was met by the firm, still not satisfied, a further appeal was filed before the income-tax appellate tribunal which is stated to be pending.3. petitioners nos. 2 to 6, who are partners of the firm, were burdened with additional demand on the basis of the order of the commissioner aforesaid, proportionately, while rectifying the demand earlier raised. it was in these proceedings that the partners approached the income-tax officer for staying the recovery of the additional demand made as appeal of the petitioner-firm was pending before the tribunal. the income-tax officer rejected those applications by passing the orders, annexures p-7 to p-9, which are being challenged in the present writ petition.4. the contention of counsel for the petitioner is that these impugned orders were passed without affording an opportunity of hearing to the petitioners and, secondly, these are not supported by reasons as these are not speaking orders. as far as the first point is concerned, there is force in the contention of counsel for the petitioners. no doubt, if the relief is to be granted to the assessee, the authorities under the income-tax act may accept the return filed or pass an appropriate order granting the relief, but when such relief asked for is to be denied, the principle of natural justice would require an opportunity of hearing to be given to them. in the present case, without hearing the petitioners, the impugned orders were passed mentioning that it was difficult for the income-tax officer to allow stay for the payment of demand raised, as the demand was being raised under section 154 of the act after the decision of the appeal by the commissioner of income-tax (appeals).5. learned counsel for the department has argued that such applications were not maintainable as these were asking for a blanket stay of the recovery of the amount due and these applicants were not, in fact, praying for extension of time under section 220(3) of the income-tax act. it may be noticed that wrong provisions of the statute mentioned in the application or non-mentioning of the same will not be per se a ground to deny the relief asked for. the substance of the application is to be taken into consideration to see if relief under any of the provisions of the statute could be granted. the petitioner's claim, in substance, was for the extension of time of 35 days allowed under sub-section (1) of section 220 of the act. though asked for stay of the recovery till the decision of the appeal of the firm by the income-tax appellate tribunal, such a blanket stay could not be granted, as has been mentioned by the income-tax officer in the impugned orders. however, it is left to the income-tax officer to be satisfied if opportunity of hearing be given to allow extension of time for a limited period.6. for the reasons stated above, the impugned orders, annexures p-7 to p-9, are quashed leaving the income-tax officer to decide the applications by affording an opportunity of hearing to the petitioners by passing a speaking order. the petitioners are directed to appear before the income-tax officer on september 9, 1991. there will be no order as to costs.7. with the directions aforesaid, the writ petitions stand disposed of.