Commissioner of Income-tax Vs. Rajwant Singh 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. a.l. bahri, j.1. the revenue has moved this court under section 256(2) of the income-tax act, 1961, for a direction to the income-tax appellate tribunal, amritsar, to submit the statement of the case and to refer questions of law to this court as under :'(i) whether, on the facts and in the circumstances of the case, the income-tax appellate tribunal is right in law in accepting the new arguments of the assessee that the partners whose names were not included in the licence had not dealt with or handled liquor ? (ii) whether, on the facts and in the circumstances of the case, the income-tax appellate tribunal is right in law in setting aside the orders of the authorities below for fresh disposal when the assessee had admitted before the income-tax appellate tribunal that the plea that three partners whose names did not occur in the licence had not dealt with or handled liquor or was not taken before the income-tax officer in the assessment proceedings ? (iii) whether, on the facts and in the circumstances of the case, the income-tax appellate tribunal is right in law in deciding the case against the ratio of decision of the punjab and haryana high court in cit v. hardit singh pal chand and co. ?' 2. in order to appreciate the arguments, only a few facts which are not disputed need to be noticed. in the assessment year 1988-89, rajwant singh and co. applied to the income-tax officer for the grant of a certificate of registration of their firm constituted of 14 partners. the income-tax officer declined the request on the ground that the excise and taxation department had issued the licence in favour of the firm constituting 11 partners only. to the excise and taxation authorities intimation was given by the assessee-firm that 14 persons were to be partners in the firm i.e., three more partners be added in the licence. the first appeal filed against the order of the income-tax officer stood dismissed. however, when the matter went to the income-tax appellate tribunal, it remanded the case for holding an enquiry as to whether such of the persons other than 11persons in whose favour the original licence was granted by the excise and taxation authorities had actually possessed and handled liquor, in order to determine whether the partnership firm of 14 partners violated any rules and regulations under the excise act. the application moved on behalf of the revenue for referring the aforesaid questions to the high court for decision was declined.3. shri r.p. sawhney, learned counsel appearing on behalf of the revenue, while referring to the decision of this court in cit v. hardit singh pal chand and co. , argued that registration could not be accorded to the assessee-partnership concern as the excise and taxation authorities had granted licence in favour of 11 persons whereas the partnership in question consisted of 14 partners. on the other hand, shri n.k. sood, learned counsel for the respondent, referred to the decision of this court in i.t. case no. 94 of 1986--cit v. kishan lal vinod kumar and co., decided on march 11, 1989, declining to direct the tribunal to refer the question of law and decision of the supreme court in s. l. p. no. 9102 of 1987, dated may 15, 1989, in that case dismissing the same. counsel has also produced a copy of the order of the tribunal in krishan lal vinod kumar and co. v. 770. the tribunal had referred to the decision in hardit singh pal chand's case , and other cases of this court that such a question was to be decided holding as to whether the assessee was entitled to registration as the revenue had not brought on record that the non-licensee partners had physically possessed or handled the prohibited goods in violation of the excise rules. learned counsel has also referred to the decision of this court in i. t. case no. 136 of 1982--cit v. kedar nath surinder kumar, decided on august 25, 1988, and i. t. case no. 34--cit v. laxmi dhar pran nath, decided on august 25, 1988. in those cases, the tribunal had given the finding that the persons whose names did not find mention in the excise licence had not either handled the liquor or sold or dealt with the liquor and such a finding was not questioned by asking for a reference. thus no referable questions of law arose and the petitions were declined.4. the contention of learned counsel for the revenue that a presumption should be drawn that when a request for registration of the partnership is made on behalf of 14 persons it should be deemed that they had actually and physically handled and sold liquor. this contention cannot be accepted. such a question depends upon the proof of fact as to whether the persons whose names do not find mention in the licence had actuallyand physically handled and sold liquor or not. in order to determine such a question of fact the tribunal in the present case had remanded the matter. hence no referable question of law arises from the order of the tribunal. this petition is, therefore, dismissed.