TMI Blog1961 (7) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... the writ petition under article 226 of the Constitution of India challenging this recovery in the Punjab High Court at Simla, and the same was dismissed on 30th July, 1951. Thereafter, he moved the Supreme Court by a petition under article 32 of the Constitution of India, which was also dismissed on 11th November, 1952. After giving the required notice under section 80, Civil Procedure Code, the present suit was filed by him against the Union of India on 15th September, 1953, for a declaration that the plaintiff not being a partner of the assessee firm could not be proceeded against for the recovery of the tax. In this suit he also claimed an injunction restraining the defendant from demanding or recovering the said tax from him. In the alternative, declaration was claimed that the assessment and recovery proceedings, in so far as they affected him, were illegal, ultra vires, collusive and mala fide and were, consequently, ineffective and inoperative against him. A preliminary objection was taken by the defendant that the suit was barred under the provisions of section 67 of the Indian Income-tax Act. This objection found favour with both the courts below and the suit was, conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng aside or modification of any assessment order made under the Act. The contention of the appellant that the present suit was not for setting aside or modifying the assessment orders is not correct, because, in reality, if his suit is decreed, the result would be that the assessment orders passed against him would have to be set aside. Though in form the relief claimed does not profess to modify or set aside the assessment, in substance, it does. As such, the provisions of section 67 of the Act would be attracted and the suit would be barred. As regards the contention that the assessment orders were without jurisdiction on the grounds mentioned above, there is no force in the same because the income-tax authorities by virtue of the provisions of section 3,23(5), 26 and 44 of the Income-tax Act are authorised to determine the partners of the assessee firm and fix their liability. The procedure regarding service of notices is given in section 63 of the Act. It was for the income-tax authorities to see whether proper service had been effected or not. Besides, the appellant himself has produced notices under section 22(4) and 37 of the Act, dated 24th January, 1948, and 5th Febr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax authorities in the assessment and recovery proceedings under the Act. For this purpose, the aggrieved party should knock at the door of the higher authorities provided under the Act itself. It cannot be said that such like irregularities would make the orders of the authorities without jurisdiction. Even if the income-tax authorities make mistakes either on fact or in law, the proper forum for curing the defects is the one provided under the Act itself. It is not where there is inherent lack of jurisdiction or the provisions of the Act itself are alleged to be ultra vires of the Constitution that a litigant can go to the civil court and seek redress of his grievance. As regards the contention that the impugned assessment orders passed by the income-tax authorities were mala fide, fraudulent and collusive, this point also does not seem to have been raised before the lower appellate court though it was urged before the trial court and the finding on the same was against the appellant. Reliance for this submission was made on a full bench decision in Lahore Electric Supply Co. Ltd. v. Province of Punjab A.I.R. 1943 Lah. 41. That case, however, is distinguishable because there an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... steps to assess him. In this case, the decision of the Privy Council in the case of Raleigh Investment Co. Ltd. [1947] 15 I.T.R. 332 (P.C.) was distinguished and it was held that such a suit was not a suit to set aside or modify an assessment, because no assessment had yet been made when the suit was instituted. The decision of the Supreme Court, it is true, has considerably whittled down the effect of the Privy Council decision in Raleigh Investment Co. Ltd.'s case [1947] 15 I.T.R. 332 (P.C.) because, according to the learned judges, a suit could be filed in a civil court if illegal and unauthorised assessment proceedings were started against the plaintiff by the income-tax authorities. It may, however, be mentioned that the rule of law laid down by the Supreme Court does not help the appellant as the facts of the instant case are clearly distinguishable. Himmatlal Harilal Mehta v. State of Madhya Pradesh [1954] 5 S.T.C. 115; [1954] S.C.R. 1122; A.I.R. 1954 S.C. 403 was a case in which Explanation 11 to section 2(g) of the Central Provinces and Berar Sales Tax Act (21 of 1947), as amended by Act 15 of 1949, was challenged by a writ petition as being ultra vires the State L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and the question of filing a suit in a civil court regarding this matter was not involved in this authority and as such it has no application to the facts of the present case. In Moti Lal Purshottam Das v. Income-tax Officer, Kanpur [1960] 39 I.T.R. 497 and T. Govindaswamy v. Income-tax Officer, Special Survey Circle, Bangalore [1960] 38 I.T.R. 197, it was held that no recovery proceedings could be taken against a person under the Income-tax Act unless first a notice of demand was served on that person. These authorities are distinguishable on the ground that the notice of demand in the instant case was, at any rate, given to one partner of the firm and such a notice was tantamount to a notice served on the other partners by reason of section 63 of the Act and the other partners would be assessees in default within section 46(1) of the Act and amount of tax and penalty due from them would be arrears within section 46(2) of the Act (vide E.M. Muthappa Chettiar v. Income-tax Officer, Special Circle, Coimbatore [1961] 41 I.T.R. 1; [1961] 1 S.C.R. 788). Moreover, these decisions were given in writ petitions and not in a regular suit like the present one. In Kailash Nath v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the High Court. It is clear that the question of filing a suit in a civil court was not involved in this authority. In may be mentioned that no authority has been cited by the learned counsel for the appellant in which it was held that in similar circumstances a suit could be filed by the aggrieved party in a civil court. It is beyond dispute that the powers of the Supreme Court and the High Courts in matters of issuing writs in exercise of their special jurisdiction are very wide. From this, it does not follow that the civil courts have got the jurisdiction to try all suits, including those the jurisdiction of which has been specifically or impliedly taken away by any statute. Learned counsel for the respondent, on the other hand, inter alia, relied on Kalwa Devadatham v. Union of India [1958] 33 I.T.R. 56, Secretary of State for India v. V.M. Meyyappa Chettiar [1936] 4 I.T.R. 241 and C.A. Abraham v. Income-tax Officer, Kottayam [1961] 41 I.T.R. 425; [1961] 2 S.C.R. 765. In Kalwa Devadatham v. Union of India [1958] 33 I.T.R. 56 it was held: If the assessee has failed to pursue the remedies provided in the Income-tax Act against an assessment he cannot resort ..... X X X X Extracts X X X X X X X X Extracts X X X X
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