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" This ground relating to standard profits was not dis cussed by the Tribunal and no finding was recorded thereon. FAC |
The Excess Profits Tax Appeals and other Income tax appeals filed by the assessee were heard together by the Tribunal and disposed of by common orders dated February 24, 1951. FAC |
In the Income tax appeals, some relief was granted, but in the Excess Profits appeals, no relief was granted due to the variation of the capital in the chargeable accounting period of 1945 46 and 1946 47. FAC |
The assessee on July 27, 1951, made an application under section 35 of the Income tax Act, 1922 for rectification of its order to the Tribunal on grounds other than the one regarding variation in the standard profits due to increase and decrease of the capital. FAC |
This application was dismissed on August 27, 1951 by the Tribunal on the ground that there was no mistake apparent on the record. FAC |
No grievance was made in this application that the Tribunal did not consider and decide the ground relating to adjustment of standard profits according to variation in capital during the relevant peri od. FAC |
On March 11, 1954, the assessee made a representation to the Central Board of Revenue praying for reopening of the assessments. FAC |
In this representation, also, he did not take up Ground No. 1. FAC |
Subsequently however on May 24, 1954 he wrote a letter to the Income tax Officer saying that he was sorry to omit 'one important point ' i.e., Ground No. 1, from his representation to the Board, and that the Income tax Officer should "supplement the same while making (his) report to the higher authorities. ' FAC |
His representation dated March 11, 1954 and the petition dated May 24, 1954, both were rejected and the Commissioner communicated those rejec tions to the assessee by a letter dated May 25, 1955, saying that he did not see any justification for re opening the assessments which had become final and closed. FAC |
Thereafter on April 2, 1956, the assessee made a second application to the Tribunal (which in substance was one for review of its orders, dated .February 24, 1951), contending that Ground No. 1 raised in his two appeals, relating to the standard profits of the two chargeable accounting periods and pointing out the fail... |
It was prayed that the appeals relating to excess profits tax matters which should be deemed to be still pending owing to the non decision of Ground No. 1 be disposed of after hear ing the assessee. FAC |
The Tribunal rejected this contention with the remark that the appeals were decided as early as 24th February, 1951 and it is now futile to contend that the matter was pending when the Tribunal had already passed orders and the orders were served on the assessee. FAC |
" The Tribunal further observed that the absence of a reference "to the contention of the assessee regarding the standard profits and the necessary adjustments would not render the Tribunal 's order a nullity, nor would it mean that the Tribunal had partially disposed of the appeals and some residue is pending". RLC |
In the alternative, it held that even on the assumption that 217 Ground No. 1 was argued and was not disposed of by the Tribunal, the proper remedy for the assessee was either to apply for rectification under section 35 or to move an applica tion under section 66. RLC |
The Tribunal refused to treat this application as one for rectification because, in its opinion, such an application would be much too time barred. RLC |
In the result, the Tribunal dismissed that application by an order dated June 9, 1956. RLC |
The assessee had filed a reference application, also under section 66(1) the Income tax Act in these cases. FAC |
That application was dismissed by the Tribunal on August 28, 1951. FAC |
The assessee then made applications under section 66(2) of the Income tax Act before the High Court requesting for reference on certain question of law arising out of the order, dated February 24, 1951, of the Tribunal. FAC |
In these applications, alsO, he did not ask for reference on a question relating to Ground No. 1 (regarding adjustment of standard profits). FAC |
These applications were allowed by the High Court by an order, dated April 12, 1956, whereby the Tribunal was directed to state a case and refer for decision certain questions of law to the High Court. RLC |
Thereafter, during the proceedings before the Tribunal for preparation of the statement of the case, the assessee moved an application, dated July 23, 1957, requesting it to refer the question of adjustment of standard profits on account of increase and decrease in the capital in the relevant periods to the High Court,... |
This application was rejected for the reason that the question had not been raised in the reference applica tion, nor did it arise out of the appellate orders of the Tribunal. FAC |
On July 24, 1957, the Tribunal stated the case and made a reference on the other question to the High Court in compliance with that Court 's order, dated April 12, 1956. FAC |
On November 4, 1968, the assessee filed a writ petition in the High Court praying for a writ of Mandamus requiring the Tribunal to consider his Ground No. 1 mentioned in the Excess Profits Tax Appeals Nos. 651 and 660 of 1949 and 1950 and his subsequent application dated April 2, 1956. FAC |
The writ petition was heard by a learned single Judge of the High Court who held that while disposing of the appeals, it was the duty of the Tribunal to record a finding on Ground No. 1 which had been specifically raised in the memoranda of appeals before it, that the Tribunal therefore, could and should have reviewed ... |
Tribunal under the Excess Profits Act; that consequently, the Tribunal was in error in refusing to treat the assessee 's application, dated April 2, 1956,.as one for rectification of a mistake of the Tribunal on 16 1003 8C1/76 218 the ground of limitation. FAC |
In the result, the learned Judge set aside the Tribunal 's order, dated June 9, 1956, and directed the Tribunal to dispose of the assessee 's applica tion dated April, 2, 1956, afresh in accordance with law. FAC |
The Revenue filed a Special Appeal against the order of the learned single Judge before the Appellate Bench of the High Court. FAC |
The Bench dismissed the appeal and affirmed the findings and orders of the learned single Judge. FAC |
Hence this appeal. FAC |
Mr. Ahuja, appearing for the appellant, con tends that the writ petition of the assessee should have been thrown out by the High Court on the preliminary ground that he had not come with clean hands. ARG |
In this connection Counsel has pointed out several circumstances which according to him, belie the main plea of the assessee that the Tribunal had not considered his Ground No. 1 although the same was urged before it at the hearing of the appeals. ARG |
It is stressed that .Ground No. 1 was not original ly taken by him in the grounds of appeal filed before the Assistant Appellate Commissioner, al though subsequently in the Additional grounds filed about one month after the institution of the ap peals, he, as an after thought, did introduce "Ground No. 1", that he did ... |
It is emphasised that all that the assessee said in the memoranda of appeals was that he was "prepared" to furnish a statement of such computa tion and accounts. ARG |
It is further pointed out that no certificate of Shri Surinderjit Singh, Advocate who is supposed to have argued the appeals before the Tribunal, was filed. ARG |
It is maintained that the only reasonable inference from these circumstances was that Ground No. 1 was not pressed or argued at all by Shri Surinderjit Singh before the Tribu nal who consequently, did not think it necessary to deal with it. ARG |
Mr. Sampath, appearing for the assessee respondent has not been able to deny the existence of the circumstances pointed out by Mr. 219 Ahuja. ARG |
His argument is that in the affidavit accompanying the writ petition, the deponent had sworn that Ground No. 1 was, in fact, argued before the Tribunal and that this sworn statement had been believed by the High Court. ARG |
This being the case, it is argued, this Court should not re open the question as to whether Ground No. 1 was, in fact, argued or not before the Tribunal. ARG |
According to Mr.Sampath, over 5 years ' delay in making the application dated April 2, 1956, partly stood explained by the circumstance that he had made a representation to the Board supplemented by the assessee 's letter of May 24, 1954 to the Income tax Officer, seeking relief on the basis of Ground No. 1. ARG |
We find a good deal of force in the submissions made by Mr. Ahuja. Ratio |
The sheet anchor of the assessee 's case in the writ petition was that at the hearing of the appeals, his Counsel had argued Ground No. 1 set out in the memoranda of appeals, but the Tribunal did not consider it at all. Ratio |
The question whether or not this Ground had been argued, was one of fact. Ratio |
The tell tale circumstances enumerated by Mr. Ahuja, unerringly lead to the conclusion that, in all proba bility, Ground No. 1 was not argued by the Counsel, possibly because he was aware that in the absence of a complete statement of accounts showing variations in the capital during the relevant periods, a contention ... |
It is noteworthy that at no stage before the Revenue authorities or the Tribunal, did the assessee categorically say that he had actually produced a complete statement of accounts and computation of the increase and decrease in capital. Ratio |
All that he said in his Additional Grounds of appeal before the 'Assistant Appellate Commissioner and the Appellate Tribunal in Ground No. 1, was that he was prepared to file such a statement. Ratio |
Shri Surinderjit Singh, Counsel who argued the appeals, has not thought it fit to certify that Ground No. 1 was actually argued, and not abandoned, by him. Ratio |
The affida vit of another person who could not be the best informed person on this point, was of little value and could hardly displace the irresistible inference arising from the sur rounding circumstances and the conduct of the assessee, namely, that his Counsel had not argued on Ground No. 1, at all and had thus giv... |
In the light of what has been observed above, we are of opinion that the High Court could not justifiably interfere in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution with the appellate orders of the Tribunal. Ratio |
In any case, the question as to whether the omission to record a finding on Ground No. I by the Tribunal was due to the failure of the appellant to urge that ground or due to a lapse on the part of the Tribunal, which de served rectification, was a .matter entirely for the author ities under those Taxation statutes. Ra... |
It will be well to recall once more what this Court speaking through J.C. Shah J. (as he then was,) had stressed in Shivram Poddar vs Income tax Officer(1) "Resort to the High Court in exercise of its extraordi nary jurisdiction conferred or recognised by the Constitu tion in matters relating to assessment, levy and co... |
In attempting to bypass the provisions of the Income tax Act by inviting the High Court to decide questions which are primarily within the jurisdiction of the revenue authorities, the party approaching the court has often to ask the Court to make assumptions of facts which remain to be investigated by the revenue autho... |
In the instant case, the High Court had assumed juris diction on the assumption that a certain ground had been urged before the Income tax Appellate Tribunal which had arbitrarily refused to consider the same and record a find ing thereon. Ratio |
This assumption, in our opinion, stood thor oughly discounted by the concomitant circumstances of the ease, including the dilatory and questionable conduct of the assessee. Ratio |
This was therefore not a fit ease for the exer cise of its special jurisdiction under Article 226 by the High Court. Ratio |
Accordingly, on this short ground we allow the appeal and dismiss the writ petition. Ratio |
As the appeal succeeds on a preliminary ground, we do not feel it necessary to express any opinion on the question as to whether or not the Appel late Tribunal under the Excess Profits Tax Act has statutory or inherent power to review and rectify mistakes in its orders. Ratio |
The assessee shall pay one set of the costs of the appellant. RPC |
P.B.R. Appeal allowed. RPC |
Civil Appeal No. 1223 1975. FAC |
From the Judgment and Order dated 4 3 75 of the Calcutta High Court in I.,. FAC |
P.A. No. 74/74. FAC |
V.N. Tarkunde, and H.K. Puri, for the appellant. FAC |
V section Desai, 1). FAC |
N. Mukherjee and N.R. Choudhary, for respondent No. I. A.K. Sen and 5. FAC |
P. Nayar, for respondent No. 2. FAC |
The Judgment of the Court was delivered by GOSWAMI, J. FAC |
This is an appeal by the defendant tenant by certificate from the judgment of the Calcutta High Court. FAC |
The question that arises for decision is whether a landlord who is a co owner of the premises with others is "the owner" within the meaning of section 13(1)(f) of the West Bengal Premises Tenancy Act, 1956 (briefly the Act). Ratio |
It will turn on the interpretation of the expression "if he is the owner" under section 13(1 )(f) of the Act. Ratio |
Briefly the facts are as follows : The plaintiff respondent (hereinafter to be referred to as the plaintiff) is admittedly the landlord of one late Bhagat Ram Pasricha predecessor in interest of the present appellant and respondents 2 and 3 (hereinafter to be re ferred to as the defendants). FAC |
The tenancy was in respect of a part of the premises No. 221/1, Rash Behari Avenue, Cal cutta, being the entire second floor of the building. FAC |
The tenancy commenced some time in 1946 and Bhagat Ram Pasricha promised to vacate the said premises within March 31, 1947 and positively after March 31, 1948. FAC |
The plaintiff is only a co sharer owner of the suit premises being one of the heirs of his father late Motilal Sen who, originally owned the property. FAC |
The plaintiff instituted a .suit for eviction of the defendants in December 1962 on the twin pleas of default in payment of rent and reasonable requirement of the prem ises for his own occupation as well as for the occupation of the members of the joint family consisting of his mother and his married brother. FAC |
The suit was contested by the defendants. FAC |
The trial court decreed the suit on both the grounds. FAC |
On the question of reasonable 397 requirement the trial court held that the plaintiff being only a co sharer owner cannot be said to be the owner within the meaning of section 13(1)(1) of the Act. RLC |
The trial court, however, held that the plaintiff succeeded in proving the case of reasonable requirement of the members of the family "for whose benefit the premises were held by him" within the meaning of the second part of section 13(1) (f). RLC |
On appeal by the defendants the lower appellate court did not accept the plea of default but affirmed the finding of reasonable requirement although the learned Judge was not specific as to which the two material parts of section 13(1)(f) would govern the case. FAC |
In the second appeal by the defendants before the learned single Judge of the High Court the question of factual existence of reasonable requirement was not dis puted. FAC |
It was, however, contended before the learned single Judge that even though the actual reasonable requirement of the premises was established the plaintiff was not entitled to a decree for eviction being only a co sharer and as such not "the owner" of the premises within the meaning of section 13(1) (f). ARG |
It was submitted that a co owner was only a part owner and was not entitled to an order of evic tion under section 13(1)(f) of the Act. ARG |
The learned single Judge accepted the contention of the defendants and dis missed the suit observing : "it will not be sufficient if the reasonable requirement is of all members, of the family of the co owners but such co owners must again be the landlords who only are made entitled to a decree for recovery of the poss... |
In the letters patent appeal before the Division Bench the High Court did not agree with the single judge and set aside the decision and decreed the suit for eviction. FAC |
Mr. Tarkunde, the learned counsel appearing on behalf of the appellant submits that the decision of the Division Bench is erroneous and we should accept the views of the single Judge. ARG |
He submits that a landlord in order to be able to evict a tenant under section 13(1)(f) must be an absolute owner of the premises from which eviction is sought. ARG |
A co owner landlord without impleading all the own ers of the premises is not entitled to ask for eviction under section 13 (1)(f) of the Act. ARG |
Mr. A.K. Sen, who ap pears on behalf of the sisters of the appellant (respond ents 2 and 3) also emphasised upon this part of the case while adopting the arguments of Mr. Tarkunde. ARG |
Mr. Desai, on the other hand. ARG |
contests this proposition and submits that the decision of the Division Bench is correct. ARG |
398 Mr. Tarkunde referred to certain decisions in support of the submission that a suit by one of the co sharers for eviction of a tenant has always been held to be incompe tent. ARG |
Counsel relied upon the decision in Bollye Satee and another vs Akram, Ally and other. ARG |
C) This was a case in which it was held that a lessee of a jalkar cannot be eject ed by a suit brought by one only of the several proprietors all of whom had granted the lease. Ratio |
This case, with its own facts, is, therefore, of no aid in the present controversy. Ratio |
In Kattusheri Pishareth Kanna Pisharody vs Vallotil Manakel Narayanan Somayajipad and others,(2) the suit was brought by the plaintiffs on behalf of an association (sabha) to recover certain lands demised by the sabha. PRE |
It was held that all the co owners must join in a suit to recover property unless the law otherwise provides. PRE |
This decision will again be of no assistance to the appellant. Ratio |
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