Om Parkash Aggarwal Vs. Commissioner of Wealth-tax - 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. one of the contentions raised on behalf of the assessee before the tribunal was that the onus lay upon the revenue to prove that the failure to file the return was without reasonable cause. the question referred reads as under :whether, on the facts and in the circumstances of the case, the tribunal was right in law in holding that penalty is leviable under section 18(1)(a) of the wealth-tax act ?' 4. the provisions of section 18(1)(a) of the wealth-tax act read as under :(1) if the wealth-tax officer, appellate assistant commissioner, commissioner (appeals), commissioner or appellate tribunal in the course of any proceedings under this act is satisfied that any person--(a) has without reasonable cause failed to furnish the return which he is required to furnish under sub-section (1) of section 14 or by notice given under sub-section (2) of section 14 or section 17, or has without reasonable cause failed to furnish within the time allowed andin the manner required by sub-section (1) of section 14 or by such notice, as the case may be ;or .5. these provisions are similar to those of section 271(1)(a) of the income-tax act, 1961. in dealing it was observed in this behalf that it cannot be said that initially the onus lay upon the revenue to show that the failure to file the return in time was without 'reasonable cause'.it was held that it is only when the assessee shows cause that an opinion can be formed regarding its reasonableness or otherwise. liability for payment of penalty, it was further observed, arises immediately upon the failure of the assessee to furnish the return within the time prescribed and, consequently, the burden of proof to show that he had 'reasonable cause' for not filing it within time, would be upon the assessee and not on the revenue.s.s. sodhi, j. 1. in the event of delay in the filing of a return, where does lie the onus, to show that it was with or without reasonable cause, upon the assessee or the revenue herein lies the controversy raised. this matter arises under the wealth-tax act, 1957, in the context of the provisions of section 18(1)(a) thereof.2. the due date for the filing of the return for the assessment year 1969-70 was june 30, 1969. it was not, however, filed by the assessee till march 23, 1970, whereupon the wealth-tax officer, by his order of february 19, 1974, imposed a penalty of rs. 5,033. the appellate assistant commissioner in appeal, however, set aside this penalty by his order of march 11, 1976, but the tribunal accepted the appeal of the revenue on september 23, 1977, and the assessee was, consequently, held liable to penalty as imposed by the wealth-tax officer.3. one of the contentions raised on behalf of the assessee before the tribunal was that the onus lay upon the revenue to prove that the failure to file the return was without reasonable cause. this was, however, negatived by the tribunal, but it was later held that this raised a question of law resulting in the present reference. the question referred reads as under :'whether, on the facts and in the circumstances of the case, the tribunal was right in law in holding that penalty is leviable under section 18(1)(a) of the wealth-tax act ?'4. the provisions of section 18(1)(a) of the wealth-tax act read as under :'(1) if the wealth-tax officer, appellate assistant commissioner, commissioner (appeals), commissioner or appellate tribunal in the course of any proceedings under this act is satisfied that any person--(a) has without reasonable cause failed to furnish the return which he is required to furnish under sub-section (1) of section 14 or by notice given under sub-section (2) of section 14 or section 17, or has without reasonable cause failed to furnish within the time allowed andin the manner required by sub-section (1) of section 14 or by such notice, as the case may be ; or ...5. these provisions are similar to those of section 271(1)(a) of the income-tax act, 1961. in dealing with them, the division bench of our court in haryana iron and steel rolling mills v. cit held that 'reasonable cause' being within the personal knowledge of the assessee, it would be for him to show it. it was observed in this behalf that it cannot be said that initially the onus lay upon the revenue to show that the failure to file the return in time was without 'reasonable cause'. it was held that it is only when the assessee shows cause that an opinion can be formed regarding its reasonableness or otherwise. liability for payment of penalty, it was further observed, arises immediately upon the failure of the assessee to furnish the return within the time prescribed and, consequently, the burden of proof to show that he had 'reasonable cause' for not filing it within time, would be upon the assessee and not on the revenue.6. it would follow, therefore, that it was for the assessee to show 'reasonable cause' for late filing of the return and not for the revenue to prove the lack of it.7. respectfully agreeing with the view expressed in haryana iron and steel rolling mills' case , we dispose of the reference by answering the matter referred in the affirmative, in favour of the revenue and against the assessee. there will, however, be no order as to costs.