Home Case Index All Cases Income Tax Income Tax + HC Income Tax - 2014 (4) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2014 (4) TMI 321 - BOMBAY HIGH COURTBar on Jurisdiction of the HC u/s 269UN OR u/s 293 of the Act - Whether the present suit is either expressly or impliedly barred under any provisions of law and more particularly under the provisions of Section 269 UN and/or 293 of the Act - Held that:- The cause of action is a bundle of facts which is taken with the law applicable to them gives the plaintiff the right to relief against the defendant - every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms - if clever drafting has created the illusion of a cause of action it should be nipped in the bud at the first hearing by examining the parties under Order 10 of the CPC - in Rangamall and others Versus Union of India [1962 (7) TMI 36 - MADRAS HIGH COURT] it has been held that merely by casting the prayer in the form of a declaration the substance of the prayer could not be hidden. The decision in Commissioner of Income-Tax And Another Versus Parmeshwari Devi Sultania And Others [1998 (3) TMI 3 - SUPREME Court] followed - the amendment made to the section is more comprehensive in nature - the scope of Section 293 of the Act has been widened and improved and it is not merely confined to set aside or modify the order - the form of suit is not relevant - It is the substance which has to be seen - when the statute prescribed certain proceedings thereunder are held and order passed, it is difficult to accept a contention that the proceeding and/or order can be modified or set aside in a civil suit filed by a third party - Section 293 is specific and does not admit filing of a suit which has the effect of even indirectly setting aside or modifying any proceeding taken under the Act - what relief cannot be claimed directly, cannot be claimed indirectly - If the relief of declaration as sought by the plaintiff is granted, it would amount to permitting the plaintiff to question the proceedings initiated by the appropriate authority, which is clearly barred under Section 293 of the Act. The 'Notes of Clauses' to the finance Act, 1986 provided that any order made by the appropriate authority u/s 269UD or any order made by the appropriate authority u/s 269UF shall be final and conclusive and shall not be called into question in any proceeding under the Income Tax Act or any other law for the time being in force, it clearly indicates the intention of legislature that such orders are final and cannot be called into question in any proceedings under Income Tax Act or any other law for the time in force - civil suit is clearly barred for claiming such declaration - seeking a declaration in the present case is a direct attempt or in any view of the matter an indirect attempt of the plaintiff to set aside the order dated 12th September 2002 which is clearly barred. It is clear that the plaintiff is challenging the proceedings initiated by the appropriate authority under Chapter XXC and also makes an attempt to challenge the order passed by appropriate authority u/s 269UD(i) which is clearly barred u/s 269UN and 293 of Income Tax Act 1961 - in view of Section 9 of the Code of Civil Procedure, 1908 the Court has no jurisdiction to try the suit in view of such suit being barred u/s 269UN and 293 of the Income Tax Act, 1961 – Decided against Assessee.
|