Calcutta High Court
Sm. Nirmala Birla And Ors. vs The Wealth Tax Officer, 'M' Ward Dist. ... on 23 September, 1974
Equivalent citations: AIR1975CAL348, [1976]105ITR483(CAL), AIR 1975 CALCUTTA 348
Author: Sabyasachi Mukharji
Bench: Sabyasachi Mukharji
JUDGMENT Sabyasachi Mukharji. J. 1. It appears that on the 29th March, 1973, the Wealth-tax Officer, 'M' Ward, District V (I), Calcutta, issued a notice under Section 17 of the Wealth Tax Act, 1957, with a view to reopen the assessment of the assessee for the assessment year 1968-69. The petitioners were the assessee Smt. Nirmala Birla, Kala-chand Chatterjee and Onkarmal Somanj as Trustees of Chandralekba Trust. On or about the 11th April, 1973, the petitioners made an application under Article 226 of the Constitution to this Court, inter alia, praying for the writs in the nature of Certiorari, Mandamus and Prohibition in respect of the notice mentioned hereinbefore. On the same date this Court issued a Rule Nisi in terms of the prayer of the said Rule. S. C. Ghose, J. who issued the said Rule Nisi also gave liberty to the revenue to conclude the proceedings initiated pursuant to the said notice under Section 17 of the said Act and to pass final order. But the revenue authorities were restrained from communicating or enforcing the said final order, if any, passed in the said proceedings until the disposal of the rule nisi. We enquired at the hearing of this appeal whether if pursuant to the liberty granted steps had been taken to complete the proceedings, if any, for which liberty had been given as mentioned hereinbefore, we were informed that till to-day no steps had been taken in respect of the proceedings pursuant to the said notice. Thereafter affidavits were filed and the said application under Article 226 of the Constitution became ready for hearing. It appears that there are 29 other matters wherein other assessees, according to the revenue, have also challenged the jurisdiction of the Wealth-tax Officer concerned to reopen the respective assessment or assessments under Section 17 of the Wealth-tax Act. It appears that the case of the revenue is that in respect of the said assessments which have been reopened there involved the question of valuation of certain shares under the Wealth-tax Act, 1957. There was a report along with a letter of the Director of Inspection (Investigation) dated the 14th March, 1973, wherein certain basis of valuation of these shares had been given and on the basis of the said report the said assessments have been reopened. The question, therefore, is whether in view of the said report of the Director of Inspection (Investigation) it can be said that there was omission or failure on the part of the assessee as contemplated under Clause (a) of Section 17 of the Act or information as mentioned in Clause (b) of Section 17 of the said Act. According to the revenue there is also another matter, namely, Birla Jan Kalyan Trust where the assessment in the income-tax proceeding has also been reopened on the said basis. In paragraph 8 of the petition made by the revenue it appears that the said cases were due to appear on the 28th March, 1974, for hearing before Masud, J. The learned Judge, however, in his judgment has stated that the said matters were due to appear on the 28th March, 1974, in the list as marked 'to be mentioned' for fixing a date of hearing. Be that as it may, it is a common case that either the said matters were due to appear for hearing on the 28th March, 1974, or due to appear on the said date for fixing a date of early hearing soon thereafter. It may be mentioned, as it appears from the petition, that prior thereto the revenue had mentioned the said matters before S. C. Ghose, J. for referring (those cases to a larger Bench. The learned judge declined to do so at that stage and observed that the said question would be considered after the learned judge had gone into the matter. It appears that the identical prayer was also made before Masud, J. by the present respondents and the learned Judge declined to pass any order in respect thereto. Ultimately, one day prior to 28th March, 1974, the revenue being the respondents to the appeal moved a petition before the Court which came up before Masud, J. for an order that (the learned Judge be pleased to report under Chapter V, Rule 2 of the High Court Rules of the Original Side that the said group of cases which were described as Birla group of cases as mentioned in annexure A to the petition, should be more advantageously beard by a Division Bench. The respondents to the present appeal, i. e. the revenue, also prayed that pending hearing or final disposal of the said application, the said cases be not listed for final disposal. This application was opposed by the present appellants, the petitioners to the rule nisi under Article 226 of the Constitution. The application was heard by Masud, J. and by a judgment delivered and order passed on 24th May, 1974, the learned Judge has held that it would be advantageous for both the parties to have the matter heard before a larger Bench and has directed that the writ petition being Petition No. 269 of 1973 be referred to the Hon'ble the Chief Justice under Rule 2, Chapter V of the Original Side Rules to the High Court. There is also an order passed restraining hearing and disposal of the other 31 applications mentioned in the Annexure A regarding what is described as Birla Group of cases reopening. This judgment and order of the learned Judge is the subject-matter of this appeal before us. 2. Before us really two points are involved -- whether the order made is appealable and as such this appeal is maintainable, and, secondly, whether the order made by the learned Judge is a proper or correct order. 3. It was contended on behalf of the respondents that the order of the learned Judge not being a final order was not appealable order and as such no appeal lay. In this connection, reliance was placed on several decisions but mainly on the Full Bench decision of this Court in the case of Nurul Hoda v. Amir Hasan, . There this Court observed while discussing various authorities on the question of "Judgment" that it was not necessary, to lay down exhaustive definition. The following tests, however, were indicated as useful guides for determining whether an order in question was final order or not, viz. (1) whether the order in question had put an end to the proceeding so far as the court dealing with it was concerned, in which the order was sought for and made, (2) the order must involve determination of some right or liability affecting the merits, (3) an adjudication or a decision, which was not anything more than a step towards obtaining the final adjudication on the merits of the dispute in the proceeding was not a judgment within the meaning of Letters Patent, (4) where the decision involved adjudication on the question of limitation or jurisdiction of the Court, in certain cases such decisions might amount to judgment. It was further noted that a decision which affected the proceeding of the dispute need not necessarily be a decision which affected the merits of the dispute. Under the Constitution ' the High Courts are given the powers under Article 226 to be exercised in certain circumstances mentioned in the said Article. It is accepted that the said powers are to be exercised under certain circumstances when the ordinary remedies provided by the different statutes do not provide adequate and alternative remedies and in some other contingencies. We need not in detail deal with these contingencies. These extraordinary remedies are available to a party who feels aggrieved by an action as in this case the petitioners under Article 226 of the Constitution obtained this rule nisi on the ground that conditions pre-cedent for user of power of reopening had not been fulfilled. The different High Courts have framed different rules of procedure as to how this power given by the Constitution should be exercised by different High Courts. As this matter was moved in the original side of this Court Chapter V of the Rules of the High Court (Original Side) would be applicable. The High Court has also framed rules relating to applications under Article 226 of Constitution. Reference has been made in the impugned order to Rule 2 of Chapter V of the Original Side Rules which provides as follows :-- "Where it shall appear to any Judge, either on the application of the party or otherwise, that a suit or matter can more advantageously be heard by a Bench of two or more Judges, he may report to that effect to the Chief Justice who shall make such order thereon as he shall deem fit." 4. Therefore, in any suit or matter which includes matter under Article 226 of the Constitution, if it appears to the learned Judge taking the matter that the matter can be more advantageously heard by a Bench of two or more Judges, discretion has been given to the learned Judge to make report to that effect. If a report to that effect is made then it is for the Chief Justice to make such order as he will deem fit, he may refer the matter to a learned single Judge or to a bench consisting of two or more Judges. The rule authorises expression of opinion by the learned Judge, either on the application of a parly or otherwise about the procedure to be followed in the disposal of a pending matter. 5. In essence, in our opinion, the rule enjoins that with regard to a particular matter the disposal of which involves such question either having regard to the complicated nature of the fact or of law that its disposal by a larger Bench would be more advantageous, discretion has been given to the learned Judge before whom the matter is pending to make a reference in terms of Rule 2 of Chapter V of the Original Side Rules. In this connection, we may refer to Rule 3 of Chapter V which is in the following terms: "Where it shall appear to any Judge at any stage of a suit, application or other matter, that it involves a substantial question of law as to the interpretation of the Government of India Act, 1935, or any order in Council made thereunder, he shall report to that effect to the Chief Justice, who shall constitute a Bench of two or more Judges to hear the question of law arising in the suit, application or other matter and remit the matter with their opinion to the Judge who made the report." The aforesaid rule deals with interpretation of the Government of India Act 1935 or of the Constitution of India. We are not concerned with that question. This discretion of the learned Judge under Rule 2 of Chapter V, as it appears from the rule, can be exercised either on the application of the party or suo motu. For regulating the procedure of the applications, under Article 226 of the Constitution separate rules have also been framed by this Court. Rule 46 of the said rules which were introduced in July, 1973 provides as follows :-- "In all application which involve the revenue, and in which the court has granted an interim stay of the assessment and/or realisation or taxes, the parties will be at liberty, after the pleadings have been completed, to mention the matter to court, and the matter upon being so mentioned shall be directed to be placed in the daily hearing list upon a day deemed to be convenient to the court." 6. Rule 26 which was also introduced on the 5th March, 1974 provides as follows :-- "The Court hearing such application may issue a Rule Nisi or summarily reject the application or make such order thereon as it thinks fit. A Judge issuing a rule nisi may make it returnable before a Division Bench," 7. In this connection, we may mention that the application for rule nisi in the instant case having been issued on 11th April, 1973 the said rule was then not in force. Therefore, the learned Judge who issued the rule nisi had no occasion to consider whether he should make the matter returnable before a Division Bench. Indeed, when the matter was mentioned before S. C. Ghose, J. who had issued the rule nisi he declined to make a reference before hearing the matter as mentioned before. Therefore, neither Rule 26 nor Rule 46 has any application in the facts and circumstances of this case. We are confined in this case to Rule 2 of Chap. V of the Original Side Rules of this Court as we have set out before. As we read the rule, this is a rule regulating the procedure of the court in which a discretion has been given to the learned Judge before whom the matter is pending for making such reference as would be in the interest of justice and the consideration for making such reference has been indicated in the said rule, that is so say, when the matter can be more advantageously heard by a bench of two or more Judges. The rule as to report, therefore, is made when the matter is not heard but a step is taken for disposal of the matter. Therefore, when a report is made under this rule there is no decision about the merits of the matter. The decision of course is made about the comparative advantage or disadvantage of the matter being heard by a learned single Judge or a Bench of two or more Judges. This is a decision affecting the procedure, regulating the procedure of the matter. 8. Counsel for the appellant contended that this order in question was appealable because the order in question had put an end to the proceeding before the learned Judge, meaning thereby the proceeding under Article 226 of the Constitution pending before the single Judge. He, secondly urged that the impugned order had also denied to his cilents the right of appeal from the decision of the learned single Judge. Under our rules the matters under Article 226 of the Constitution are normally heard by a single Judge. Under the Letters Patent, appeal lies from that decision of the learned single Judge to the Division Bench. According to counsel for the appellant this right was vested right and the appellants had been deprived of this right by the impugned order passed by the learned Judge. Thirdly, it was contended that the order in question related to the jurisdiction of the learned Judge passing the order. In other words, it was contended that the factors upon which the learned Judge could form the opinion that the matter could be more advantageously heard by a larger bench were conditions precedent upon which the learned Judge's jurisdiction to make a report was dependent. Therefore, it affected the exercise of jurisdiction by the learned Judge. In this connection, counsel referred us to several decisions, viz. the decisions in the case of Satis Churan Law v. R. Goho, ; National Textiles v. Premraj Ganpatraj, ; Steel and Allied Products v. Gerbueder Bohlar & Co., (1971) 75 Cal WN 416 and Sborab Merwanji Modi v. Mansata Film Distributors, . He also contended that according to the principle laid down in the aforesaid Full Bench decision referred to hereinbefore inasmuch as it had put an end to the proceeding and inasmuch as it had affected the jurisdiction of the court, the order in question was appealable. It was also contended that the concept of jurisdiction was a changing one and it was not merely where the authority or the officer lacked the jurisdiction to entertain a matter but also when an authority was exercising power upon certain condition, the question of jurisdiction was involved and in this connection reliance was placed on the observations of the Supreme Court in the case of M. L. Sethi v. R. P. Kapur, . 9. Having regard to the nature of the discretion given by the rule, we are of the opinion that this is essentially as we mentioned before a matter regulating the procedure of the court. The discretion or the power given to the court is only to regulate the procedure of the court and in our opinion, exercise of that power would not in any way affect the merit of the matter in question. It does affect to some extent the proceeding in disposal of the matter which is entirely different from the merit of the matter involved. So far as the question of right to appeal is concerned, it is true that normally when a matter is heard by a learned single Judge a party has a right to appeal to the Division Bench under Letters Patent by the rules of our court but that is subject to the rules that have been made, i. e. Rule 2 of Chap. V and Rule 26 of 226 (writ) rules we have mentioned before. In a case where the learned Judge issuing a rule nisi at the time of the issuance of the rule nisi was of the Opinion that the matter involved such question which should be heard by a larger bench, he can make the rule returnable before a larger bench. In that case, the party aggrieved would not have any right of appeal under Letters Patent. Secondly in a case where, the learned Judge is of the opinion that because of certain factors the matter can be heard more advantageously by a Bench of two or more Judges, the party in question is deprived of the right of appeal. Therefore, the right of appeal from the order of single Judge to a Division Bench is not such a vested right. In these circumstances, it is subject to the Rule 2 of Chap. V and Rule 26 of the 226 (writ) rules. Furthermore, in our opinion, in this case no question of divestiture of the right of appeal arises. The learned Judge has made a report to the effect that in his opinion the matter could be more advantageously heard by a Bench of two or more Judges. If when the matter is referred to a Division Bench and the present appellants succeed in their contentions before the Division Bench. then no question of divestiture of the appellants' right of appeal arise. Secondly, if the Chief Justice pursuant to the report refers the matter to a bench of three or more Judges, then the appellants would have the advantage of the views of three learned Judges. Thirdly, the Chief Justice might refer the matter to a learned single Judge then the appellants would still have the right of appeal in the event of being aggrieved by the order of the learned single Judge. We are therefore, of the opinion that by the impugned order no question arises of the divestiture or interference of any right of appeal of the appellants. Lastly, it was contended that the order affected the jurisdiction of the learned Judge. Assuming that the Judge was in error in making the impugned order when he referred the matter or the grounds on which he had referred the matter were not germane to the determination of the question whether the matter could be heard more advantageously by two or more Judges of this Court, then can it be said that there has been usurpation of jurisdiction by the learned Judge in a matter in which he had no jurisdiction? How the matter should be disposed of is a matter of regulating the procedure of the Court. The learned Judge has been given certain powers for regulating the procedure of the matter in certain manner. If the learned Judge erroneously exercises such discretion, in our opinion, no question of conditions precedent not being fulfilled or usurpation of jurisdiction arises. 10. Therefore, the order in question in our opinion also does not involve any question of jurisdiction. 11. We are, therefore, of the opinion, that the order in question is not a final order from which an appeal lies. 12. On the question of the propriety of the order we have no doubt that the revenue took an ill advised step. As mentioned herein before if the anxiety of the revenue was to have a speedy disposal of the matter, that was not proved by the action taken. As we mentioned before liberty was given to the revenue authorities to complete the proceedings, if they were so advised, so that realisation of the revenue might not be ultimately delayed. But as we understand, no steps had been taken since the 11th April, 1973, up to this date. Thus far need be said about the anxiety of the revenue for speedy realisation of the dues: The grounds upon which the application had been made for directing a reference are contained in paragraphs 9 and 10 of the petition. In paragraph 9 it has been stated that in the said case a very large amount of revenue was involved and the points involved were of such a nature that the matter would be canvassed by either party in the court of appeal. It was further stated that a good deal of expenses and time would be saved if the matters were referred to and disposed of by a Division Bench of this Court. In paragraph 10 of the petition it was stated that in the event of the revenue succeeding in the said cases, the said matters would have to go through the whole gamut of the proceeding under the Wealth Tax Act, 1957 or the Income-tax Act, 1961, resulting in the ultimate disposal of the cases after the delay of several years. It was further stated that the said cases involved huge revenue and the points were similar. It is difficult to appreciate the grounds upon which the reference to a larger Bench was sought for in the application made by the revenue. The grounds seem to be (i) that a large amount of revenue was involved; (ii) the points involved were of such a nature that the matter would be canvassed by either party in the Court of appeal; (iii) that the matters will have to be ultimately disposed of through the whole gamut of the proceedings under the Wealth-tax Act, 1957 or the Income-tax Act, 1961; (iv) the said group of cases involved similar question which could be advantageously heard by a Division Bench of this Court. If we take the last point, if there was any similarity in respect of these cases these matters could have been heard one after the other or together. This is done normally and would have been done in this case. It is, however, difficult to appreciate the view about similarity of the points involved in a re-opening. The main point to be decided in each case is whether the conditions of Clause (a) or (b) of Section 17 have been fulfilled, and this will depend upon the facts and records of each particular assessments. The learned Judge has relied on this view of the matters as one of the grounds for making the reference. We will assume that this case involved the question of reopening on the basis of the report of the Director of Inspection (Investigation) as referred to hereinbefore. But even assuming that that is the position, it is difficult to discover the point of similarity, so far as the disposal of the applications under Article 226 of the Constitution were concerned. In order to determine whether for the purpose of Article 226 of the Constitution the reopening was proper or not, it would be necessary to determine whether in some cases the report of the Director of Inspection could be treated as information or whether as a result of the contents of the report it could be said that the assessees in certain cases were guilty of suppressing relevant and material facts at the time of original assessments. This will involve the examination of the facts of each case to determine whether either of these two conditions were fulfilled. Thereafter the consideration of action being without jurisdiction or mala fide, if any or ulterior purpose will arise. Therefore, it is difficult to appreciate the similarity of the points. It may be that ultimately the question of a large amount of revenue would be involved but it was nowhere suggested that the cases involved the question of such a complexity either of law or of facts which could be more advantageously disposed of by a larger bench. Indeed, the principles upon which the reopening has to be made under Section 148 of the Income-tax Act, 1961, or under Section 17 of the Wealth Tax Act, 1957, are now settled by numerous decisions of the Supreme Court or different High Courts. Sometimes the application of the principles to different facts of cases present some difficulties and they are examined in the light of the facts of each case. It is not suggested that the cases were of such a nature where either any complex principle of law was involved or any complexity of facts was involved in any of these cases. The learned Judge in his judgment has referred to some of the grounds why according to him he was making this order of reference, namely, grounds (a) to (h) in the judgment. Leaving aside the principles and the history of the case the learned Judge seems to have relied in this case on the nature of the transactions, the correctness of the price of the shares, and the genuineness of the investments which should be decided as early as passible. Even assuming that that has to be so, it is difficult to appreciate bow the disposal of an application under Article 226 of the Constitution could either determine the nature of the transactions or the correctness of the price of the shares or the genuineness of the investments. All that an application under Arti-cle 226 of the Constitution could decide was whether the particulars of the transactions were disclosed in such a manner as to amount to full and true disclosure or whether in view of the report of the Director of Inspection it could be said that information had come to the possession of the revenue entitling the revenue to reopen the assessments. The learned Judge has also referred that there would be a large number of writ petitions in connection with other assessment years in connection with similar assessees and there would be larger number of appeals or references in connection with other assessment years in respect of one assessee trustee or the other and similarly a large number of writ applications or appeals would arise. Even assuming that that is so and the apprehension of the revenue or the learned Judge was true but even then it is not possible to resolve or solve this apprehension in one way or the other or help in the final solution of this apprehension by the disposal of an application under An. 226 of the Constitution by a larger bench. It is stated that a large amount of money might be payable to the revenue. That could also not be resolved in this application. Furthermore for that protection of the revenue if any kind of security was needed, the revenue could have moved otherwise which the revenue did not do in this case. Reading the judgment as a whole it appears to us that, costs and delay, seem to be two main factors which have influenced the learned Judge in making the order of reference in question. According to the rules of our High Court normally a matter should be heard by a learned single Judge. But if it is a case of such complexity either because of the facts involved or of law involved that it should be more advantageously heard by a larger Bench then the learned Judge could report accordingly. This procedure in our opinion ought not to be circumvented only on the ground that costs and delay would be affected. If that is so, it is unfortunately true that in the procedure as enjoined by our rules for all normal cases certain amount of costs and delay would be involved. But the High Court has framed the rules as these are and the procedures cannot be circumvented only on the ground of costs and delay because if that is the principle of making a reference to a larger Bench, then there will be no justification of keening many or most of the writ petitions before a learned single Judge or any or most of the suits before a learned single Judge. If it is viewed from that angle only, it would certainly be in every case less expensive and less dilatory to be heard by a Division Bench than to go to appeal from the learned single Judge. These two grounds mentioned before cannot be the criterion for making a reference under Rule 2, Chap. V of the Original Side Rules. As we read the rule, we are of the opinion that the rule was meant to be exercised in such cases where the learned Judge hearing the matter was of the opinion that because of the complexity of the points of law involved or of facts involved it would be more advantageous to the matter in question, in these special cases reference under Rule 2, Chapter V normally could be made. The importance of expression "advantageous to the matter" in the rule has to be borne in the matter, it was not advantage to the parties. Therefore, we are of the opinion that the grounds upon which the learned Judge has exercised his discretion were not proper grounds. We must, observe that the rule enjoined advantage to the matter to be the test. But even if an appeal lay in view of the delay caused by the ill advised step of the revenue and in view of the procedural wrangle following therefrom we would not have interfered with the order made by the learned Judge. We are of the opinion that interference with the order made now would be less advantageous to the matter and not in the interest of justice. The matter should be heard as expeditiously as possible. The other 31 matters might be disposed of after the disposal of this matter. In the aforesaid view of the matter we would npt have in any event interfered with the order of the learned Judge even though we disagree with reasonings of the learned Judge. We are, however, of the opinion that the grounds upon which the learned Judge made the impugned reference are not the proper grounds. The appeal, however, fails and is accordingly dismissed. As a mark of our disapproval of the conduct of the respondents, the respondents would pay the costs of the appeal to the appellants. R.N. Pyne, J.
13. I agree.