Kwality SkIn Co. Vs. Assistant Commissioner of Income-tax 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. - learned counsel has further pointed out that an affidavit had been filed by the managing partner indicating that he was not well and that the audit report had been prepared by the chartered accountant in october, 1992. 3. admittedly, the assessee's premises were surveyed on november 24,1992. his statement was recorded. ' 4. a perusal of the above extract from the statement clearly shows that mr. rajinder kumar arora which appears to have been verified on january 4, 1993. it is taken on record as mark 'a'.counsel submits on the basis of the affidavit that the managing partner of the assesses was not well and, thus, the audit report could not be obtained. , in the last week of october 1992.'7. a perusal of the above shows that the audit had allegedly been completed on october 23, 1992. this is clearly contradicted by the abovenoted statement made by the mr.jawahar lal gupta, j.1. the assessee derives its income from business. its premises were surveyed on november 24, 1992. on november 27, 1992, the assessee was given a notice under section 271b of the income-tax act, 1961. the assessee filed a reply on january 4, 1993. after recording the evidence, the assessing authority levied a penalty of rs. 99,568. the assessee filed an appeal. it was accepted by the commissioner vide order dated october 26, 1993. aggrieved by the order, the revenue filed an appeal. the tribunal having reversed the order of the commissioner, the assessee has filed this appeal under section 260a of the act.2. mr. a. k. mittal, learned counsel for the appellant, contends that the audit report was ready on october 30, 1992. the managing partner of the assessee-firm was sick. thus, the report could riot be collected and produced before the officer at the time of survey. learned counsel has further pointed out that an affidavit had been filed by the managing partner indicating that he was not well and that the audit report had been prepared by the chartered accountant in october, 1992.3. admittedly, the assessee's premises were surveyed on november 24,1992. his statement was recorded. the relevant portion has been reproduced in the order of the assistant commissioner of income-tax, a copy of which has been produced as annexure p-l. it reads as under : 'question : where is the audit report ? answer : the report is not lying with me. it is with shri jasbir singh, chartered accountant. question : should we go to the office of sh. jasbir singh, chartered accountant, and collect the report in your presence ? answer : i know that report is not yet ready by this time and it is yet to be prepared.' 4. a perusal of the above extract from the statement clearly shows that mr. rajinder kumar arora, the managing partner, did not have the report on november 24, 1992, with him. still further, when the surveying officer had offered to go to the office of mr. jasbir singh, the chartered accountant, to collect the report, the partner had stated that he knew that the 'report is not ready.' thus, it is clear that till november 24, 1992, the report had not even been prepared. it is, thus, clear that the assessee's claim that the audit report was ready by the due date is not correct. thus, we are not surprised that the tribunal had felt constrained to reverse the order passed by the commissioner of income-tax (appeals).5. mr. mittal has produced before us a copy of the affidavit of mr. rajinder kumar arora which appears to have been verified on january 4, 1993. it is taken on record as mark 'a'. counsel submits on the basis of the affidavit that the managing partner of the assesses was not well and, thus, the audit report could not be obtained..'6. we have examined this affidavit. in para. 4, it has been stated as under :'4. that at the time of completion of audit on october 23, 1992, our auditor, sh. jasbeer singh, chartered accountant, told me that now the audit of kwality skin co. is complete and i could collect the tax audit report from their office-cum-residence in the next week, i.e., in the last week of october 1992.'7. a perusal of the above shows that the audit had allegedly been completed on october 23, 1992. this is clearly contradicted by the abovenoted statement made by the mr. rajinder kumar arora before the officer on november 24, 1992.8. no other point has been raised.9. in view of the above, we find no infirmity in the order of the assessing officer or that of the tribunal so as to call for any interference.