TMI Blog1972 (12) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax Tribunal to draw up a statement of the case and raise and refer to this court certain questions of law specified in the petition under section 256(2) of the Income-tax Act. The amount of tax in dispute is a little over Rs. 20,000 and the amount of court-fees payable under item No. 16 of Schedule I to the Bombay Court Fees Act, 1959, is Rs. 390. The petitioner states that he is not possessed of sufficient means to enable him to pay the fees payable by law and he may, therefore, be granted permission to sue in forma pauperis. This petition is opposed on behalf of the Commissioner of Income-tax. It is contended on behalf of the respondent that the provisions of the Code of Civil Procedure do not apply to proceedings under section 256 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Calcutta High Court, wherein it has been held that where an applicant under section 66 of the Indian Income-tax Act, 1922 (which corresponded to section 256 of the Income-tax Act, 1961), died during the pendency of a reference before the High Court, the reference did not abate because the provisions of the Code of Civil Procedure were not applicable to references under the Indian Income-tax Act, 1922. In the case of Commissioner of Income-tax v. I. D. Varshani , the applicant had died not during the pendency of an application to compel a reference but during the pendency of the reference itself. A Division Bench of the Allahabad High Court held that there was no provision either in the Indian Income-tax Act, 1922, or in the Rules made th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 66 of the Income-tax Act. In this case also the provisions of section 141 of the Code of Civil Procedure do not appear to have been considered. Reliance was also placed on behalf of the respondent on the judgment of a single judge in Somanna v. Chinnayya, holding that no application lay for restoration of a petition under section 73, Madras Village Courts Act, which had been dismissed for default. In that case it was observed that there was no provision in the Civil Procedure Code or the Madras Village Courts Act for restoration of petitions dismissed for default. Order 9, rule 9, Civil Procedure Code, applies in terms only to suits and, therefore, it was not applicable to the petitioner under section 73, Madras Village Courts Act. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t made on behalf of the respondent that such application is merely a continuation of proceedings before the income-tax authorities or before the Income-tax Appellate Tribunal. In my opinion, it is an independent proceeding before a court of civil jurisdiction. Section 141 would, therefore, apply. One has, however, to see whether the provisions of Order 33, Civil Procedure Code, are procedural provisions or they confer any substantive rights. Order 33, rule 1 of the Code of Civil Procedure provides that any suit may be instituted by a pauper. Rule 2 provides for an application for permission to sue as pauper. Rule 8 states that where application is granted, it shall be numbered and shall be deemed to be the plaint in the suit except that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Thakkar, on behalf of the petitioner, invited my attention to the judgment of the Supreme Court in the case of Ram Chandra Aggarwal v. State of Uttar Pradesh, where the provisions of section 24 of the Code of Civil Procedure were made applicable to a reference made by a magistrate to a civil court under section 146(1) of the Code of Criminal Procedure by virtue of section 141 of the Civil Procedure Code. But the cases more in point are two judgments, one of the Bombay High Court and the other of the Madras High Court to which I will refer presently. In In the matter of the will of Dawubai Haji Khan Hubib Khan, Sterling J. held that where an executor is not in possession of the property of his testator and cannot get possession of it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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