TMI Blog1975 (1) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee-family it was noticed that there was a cash credit of Rs. 3,65,435 representing the sale proceeds of gold and sovereigns. The assessee explained the said assets as family heir-loom at the time of its partition in 1941 which were alleged to have been kept outside the books of account according to the practice with the family to create and maintain reserves in the form of cash, bullion, guineas and jewellery. The Income-tax Officer was satisfied with the said explanation and did not take the said amount into the account while passing the order, annexure "A". The assessee's claim of losses in respect of their two contract works was disallowed. Feeling aggrieved by the aforesaid assessment, the assessee filed an appeal. The Appellate Assistant Commissioner of Income-tax, Kanpur, by his order dated 12th November, 1957, set aside the assessment order and remanded the case with a direction to compute the profits or losses from the two contract works pointing out that he was not giving his findings on the other additions made in the assessment. In pursuance of the aforesaid direction, Shri R. Kapur, Income-tax Officer, Meerut, by his order dated 27th March, 1961 (annexure "B"), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Assistant Commissioner, annexure "C", made a fresh assessment on 21st February, 1963, vide annexure "D", wherein he considered the question of the cash credits of Rs. 3,65,435 and included Rs. 2,52,291 therefrom which related to the previous year as the income of the assessee-family from undisclosed sources. It appears that during this period the Hindu undivided family of Sahu Jagdish Prasad stood disrupted by partition. Against the aforesaid order of Shri B. C. Mitter, four different appeals, mentioned below, were filed before the Appellate Assistant Commissioner, Meerut : Appeal No. Name of the appellant 1. 32/63-64 Sahu Jagdish Prasad (coparcener in erstwhile family), Pilibhit. 2. 26/63-64 Shri Madhav Prasad, Pilibhit. 3. 36/63-64 Shri Govind Prasad, Pilibhit. 4. 33/63-64 Sahu Jagdish Prasad, karta of H. U. F., Pilibhit. Shri S. D. Gupta, Appellate Assistant Commissioner, Meerut, passed four separate orders on 19th August, 1963, a copy of one of which orders is annexure "B", holding that the Income-tax Officer was competent to investigate the nature and source of the aforesaid credits in the course of the revised assessment. He also held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the five applications. The Tribunal dismissed the four applications filed subsequently on 10th February, 1965, on the ground that they were time-barred. With regard to the Reference Application No. 1722 of 1964-65 filed earlier on 23rd January, 1965, the Tribunal by its order, annexure "G", held that the application was within time but dismissed the same on the ground that there should be as many reference applications as there were appeals and that one reference application was not competent in respect of all these appeals. The Tribunal also held that the Commissioner of Income-tax could not be permitted to elect in respect of which appeal the reference application should be taken to have been filed. The aforesaid order of the Tribunal is challenged by the petitioners in this writ petition on the ground that there was one assessment order against the Hindu undivided family of Sahu Jagdish Prasad, Pilibhit, and even if there was disruption of the assessee-family as alleged by the assessee, there should have been really one appeal filed by the erstwhile karta and that the separating members could either join in that appeal as appellants or they could file separate appeals but so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime allowed under sub-section (1). The Tribunal having rejected the reference applications filed subsequently on 10th February, 1965, the remedy of the petitioners was as provided in sub-section (3) of section 66. Sub-section (2) of section 29 the Limitation Act envisages that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 of the said Act shall apply as if such period were the period prescribed by the Schedule. Section 3(1) of the Limitation Act prescribes that, subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period, shall be dismissed, although limitation has not been set up as a defence. The aforesaid applications having been filed beyond limitation, in the circumstances, were rightly rejected by the Tribunal. The department, if it felt aggrieved by the order of the Tribunal, having not taken recourse to the provisions of sub-section (3) of section 66 and having allowed the order of the Tribunal to become final, cannot turn round at this lat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aiming that she was entitled to be the owner of the whole of the land. She, however, did not appeal against the decree granted to "B" and the time for her doing so had long since expired. A contention was raised that the question at issue in appeal of "C" was res judicata by the decision in "B's" suit being a final decision. The Full Bench held that "where two suits, having a common issue are, by consent of parties, or by order of the court, tried together the evidence being written in one record and both suits disposed of by a single judgment", there being but one finding and one judgment, on what principle can the hearing of the appeal in which that finding and judgment were under consideration be barred merely because no appeal had been filed in the connected suit which was disposed of by that judgment. It was observed that there had been in substance as well as in form but one verdict and that it would be a travesty of justice to stifle the hearing of the appeal against such a judgment on the ground that the findings contained in it operated as res judicata. In such a case there could be no question of the successful party being "vexed twice" over the same matter ; nor did the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmittedly time-barred, the first appeal also failed by the application of the principle of res judicata. Dealing with the contention the Supreme Court observed that : " It is now well-settled that where there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up. As has been observed by Tek Chand J. in his learned judgment in Mst. Lachhmi v. Mst. Bhulli, mentioned above, the determining factor is not the decree but the matter in controversy. As he puts it later in his judgment, the estoppel is not created by the decree but it can only be created by the judgment. The question of res judicata arises only when there are two suits. Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and, in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit. As such, there is no question of the application of the principle of res judicata. The same judgment cannot remain effective just becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sult of the appeals was that the suit was dismissed by the lower appellate court and a decree dismissing the suit was passed. It was held that in such circumstances the plaintiffs need not file two second appeals and that it was enough if the plaintiffs file one second appeal. The appeals having been consolidated, heard together and disposed of by a common judgment it is not open to contend that there had been five distinct and independent trials or that the other reference applications having been dismissed as time-barred would give rise to an anomaly or embarrassment because there is no conflicting judgment in the appeals. Besides, if the department succeeds in the Reference Application No. 1722 of 1964-65, it would be that decision which would supersede the Tribunal's decision dated 23rd November, 1964, in the other four appeals and would "thenceforward be the only effective adjudication". In the view that I have taken no help can be drawn by the respondents from the case of Inder Singh v. State of Rajasthan. In that case 23 separate applications were pending before the anti-ejectment officer in which there were separate applicants. The petitioners filed 23 separate applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al was to the liability of the erstwhile Hindu undivided family arising out of the assessment for the year 1951-52. The department was in the circumstances right in contending that the parties, assessment year and the subject-matter of all the appeals were identical. The case of Khurjwala Buckles Manufacturing Co. v. Commissioner of Sales Tax is equally of no help to the respondents. In that case it was observed that one writ petition for the quashing of two assessment orders under two different taxing statutes even though the assessee is the same and assessing authority is the same, cannot be entertained. The case of the revenue is squarely covered by the decision of their Lordships of the Supreme Court in K. G. Khosla and Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes, Madras Division. In that case there were four revision petitions before the High Court. Two revisions were filed by the assessee and two by the State in respect of two assessment orders and they were disposed of by one common judgment. It was contended that the assessee should have filed four revision petitions before the Supreme Court. Repelling the contention it was observed that the subject-matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Procedure as observed by their Lordships of the Supreme Court in the case, Income-tax Officer, Cannanore v. M. K. Mohammed Kunhi. The Tribunal is not a court but it exercises judicial powers. As observed in the above-cited case because of its appellate jurisdiction the Tribunal has the power of doing all such acts or employing such means as are essentially necessary for making orders for staying proceedings to prevent an appeal, if successful, from being rendered nugatory. Because of the powers of the Tribunal which are of "widest amplitude and identical with the powers of an appellate court under the Code of Civil Procedure" in the circumstances of the case the Tribunal should have permitted the department to rectify the mistake in mentioning the names of the other respondents clearly instead of their being described as "and others". Reference here may be made to the case, Jhuta Ram v. Ram Sarup. In that case a suit was instituted against several defendants of whom three were minors. The minor defendants were first represented by their relations as their respective guardians but subsequently as those relations refused to act as guardian a court official was appointed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... January, 1966, but that the petition was filed on 10th October, 1966, and there being inordinate delay, the petition deserves to be dismissed on that ground The petition having been filed within a period of nine months cannot be said to suffer from inordinate delay or laches calling for its dismissal. It may bear mention here that the petition has been filed not only under article 226 but also under article 227 of the Constitution of India. There is no rule of limitation for preferring an application under article 227 of the Constitution of India (See Peota v. Phagu). The view taken by the Tribunal that one reference application arising out of a common judgment disposing of five appeals was not competent being not tenable in law cannot be allowed to stand on a technical ground of laches, which contention otherwise is not supportable on the facts of the case. In view of my discussion on the various points noted above, the writ petition succeeds and the same is hereby accepted with costs. The impugned order dated 27th January, 1966, annexure "G", is quashed. The Tribunal is directed to entertain the reference application of the department (No. 1722 of 1964-65) and deal with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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