Devi Dayal and ors. Vs. Union of India (Uoi) and ors. - 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. sukhdev singh kang, j. 1. petitioners nos. 1 to 3 are partners of a firm, m/s. om industries, charkhi dadri (petitioner no. 4), which is engaged in the business of commission agency and manufacture of gram dal, barley, ghat, etc. petitioner no. 1, devi dayal, filed a return of income of the partnership firm for the assessment year 1971-72 on april 6, 1972, showing an income of rs. 5,480 which was later on revised to rs. 7,000. during the assessment proceedings, the income-tax officer, bhiwani (respondent no. 3), took into possession certain documents from the station house officer, dadri, and alleged that the same belonged to the petitioners. he issued notices to the petitioners under section 143(3) of the income-tax act, 1961 (hereinafter referred to as 'the act'), and sought clarification from them. according to the income-tax officer, the petitioners had purchased 1,376 bags of gram dal which were not accounted for in the books of petitioner no. 4. the income-tax officer ultimately completed the assessment under section 143(3) on february 22, 1973, and assessed the income of respondent no. 4 at rs. 55,022. on appeal, the said assessment order was set aside and the case was remanded for fresh decision after proper investigation. respondent no. 3 sent the proposed assessment for approval to the inspecting assistant commissioner of income-tax, rohtak, and the said proposal was approved and, consequently, the income of respondent no. 4 was assessed at rs. 1,44,190. the income-tax officer (respondent no. 3) found that the petitioners had done business without showing it in the books of account to the tune of 1,376 bags and assessed the initial investment at rs. 1,37,600 and added rs. 36,956 on account of profits thereon. respondent no. 3 consequently found that the return which was signed and verified by devi dayal, petitioner no. 1, did not disclose the true income and petitioner no. 1 knew it to be false. the petitioner filed an appeal before the commissioner of income-tax (appeals), chandigarh, and the learned commissioner modified the order of the income-tax officer and came to the conclusion that an addition of rs. 41,000 was justified in view of theunexplained investments and profits of rs. 1,37,600 and rs. 36,952, respectively, as found by the income-tax officer, thereafter, penalty proceedings under section 271(1)(c) of the act were initiated against the petitioners and a penalty of rs. 41,000 was imposed for concealment of income. the appeal against the imposition of this penalty was dismissed by the commissioner of income-tax (appeals), chandigarh. the petitioner took an appeal against the imposition of penalty to the income-tax appellate tribunal at delhi and the same is pending.2. a complaint dated january 23, 1980, has been filed by the income-tax officer against the petitioners under section 277 of the act read with sections 191/193/34 of the indian penal code on the allegations that in the assessment year 1971-72, the petitioner had intentionally, dishonestly and fraudulently made false entries in the books of account with a deliberate and mala fide intention of concealing their income in order to cause wrongful loss to the department and had signed and verified the return of income which they knew to be false and not true. aggrieved, the petitioners have filed the present writ petition challenging the constitutional validity of sections 277, 278 and 279 of the act and the validity of the criminal proceedings pending against them in the court of the chief judicial magistrate, bhiwani.3. it is apparent from the above narration of facts that even the commissioner of income-tax (appeals) has given a finding that an income of rs. 41,000 had accrued to the petitioner-firm (respondent no. 4) on account of unexplained investments and profits. simply because the commissioner of income-tax (appeals) has deleted the addition of rs. 1,33,552 from the addition made by the income-tax officer, it cannot be said that the criminal complaint against the petitioners cannot proceed in relation to the addition of rs. 41,000 also. what is the effect of the deletion made by the commissioner of income-tax (appeals) will be a matter to be gone into by the trial court. mr. g. c. garg, learned counsel for the petitioners, submitted that as an appeal against the imposition of penalty is pending before the income-tax appellate tribunal, delhi, the matter has not been decided finally.4. on the basis of these contentions, it cannot be plausibly argued that criminal proceedings pending against the petitioners, cannot continue. however, if the commissioner of income-tax (appeals) had deleted all the additions made by the income-tax officer, the position may have been different. mere filing of an appeal by the petitioners against the imposition of penalty under section 271(1)(c) of the act will not be a bar to the continuance of the proceedings in a criminal court. if and when any order favourable to the petitioners has been passed or may be passed by thedepartmental authorities that surely can be produced by them before the learned trial magistrate and there is no doubt that due weight and consideration shall be given to that order.5. no argument has been raised to assail the constitutional validity of section 277 of the act and rightly so, because the constitutional validity of section 52, a similar provision in the indian income-tax act, 1922, has been upheld by the supreme court in t.s. baliah v. t. s. rangachari, ito : [1969]72itr787(sc) . those very reasons apply to uphold the constitutional validity of the provisions of sections 278 and 279 of the act.6. in this view of the matter, there is no merit in this writ petition and the same is dismissed. however, anything said or observed in this judgment may not be taken to be an expression of any opinion on the merits of the case pending before the trial court and that court shall decide the matter on the basis of the evidence produced before it. no costs.