Meghalaya Plywoods Ltd. vs Commissioner of Income Tax

Manisana, J.—This reference has been made by the Assistant to the Deputy Commissioner, Shillong, u/s 113, read with Order XLVI, rule 1 of the Code of Civil Procedure, 1908 to this Court to decide the following questions:

Whether the notice No. F. No. M-309/ACIT/INVJ/2646 dated 30-12-1991 issued by the Assistant Commissioner of income tax, Investigation Circle and notice u/s 142(1) and (2) of income tax Act and all proceedings under sections 147 and 148 of income tax Act are legal and with jurisdiction?

Whether the defendants/OPs have acted legally in withholding refund as alleged by the plaintiff, being withheld though due for refund? and

Whether in view of the facts and circumstances as set out in the plaint of the suit, the bar of jurisdiction of the Civil Court u/s 293 of the income tax Act applies?

The facts leading to this reference, in brief, are as follows: The plaintiff instituted TS No. 17(T) of 1992 before the Assistant to the Deputy Commissioner, Shillong, against the Commissioner, Deputy Commissioner, Assistant Commissioner and the Union Government claiming, inter alia, declaration that proceeding u/s F. No. M-309/ACIT/INVJ/2646, dated 30-12-1991 issued by the Assistant Commissioner, Investigation Circle, Shillong, and notice u/s 142(1) of the income tax Act, 1961 (''the Act'') annexed to the plaint as well as all the proceedings initiated u/s 147, read with section 148, of the Act are illegal, and that the defendants have no authority to withhold the sum of Rs. 12,62,326.00 refundable to the plaintiff. The Court, on hearing the suit, entertained a doubt on the questions of law stated above and referred the same for decision of the High Court.

Section 293 of the Act, as it stood before amendment, runs as follows:

Bar of suits in civil courts. -No suit shall be brought in any civil court to set aside or modify any assessment order made under this Act, and no prosecution, suit or other proceeding shall lie against the Government or any officer of the Government for anything in good faith done or intended to be done under this Act.

After the amendment section 293 reads thus:

Bar of suits in civil courts. -No suit shall be brought in any civil court to set aside or modify any (proceeding taken or) order made under this Act; and no prosecution, suit or other proceeding shall lie against (the Government or) any officer of the Government for anything in good faith done or intended to be done under this Act.

By the Finance Act, 1988, the words within brackets were inserted with retrospective effect from 1-3-1988.

The dispute relates to the assessment years 1981-82, 1982-83, 1983-84 and 1984-85. Much argument was made as to whether the provisions of section 293 of the Act as it stood before amendment shall be applicable to the present case in view of the assessment years. We are not expressing our opinion in the present case in view of our proposed order. It may be stated here that if proceeding initiated or assessment or any order made under the Act is without jurisdiction, even if there is express bar under the Act, jurisdiction of the Civil Court is not ousted for any order made or any proceeding initiated under the Act by the authority having no jurisdiction will be null and void. In other words, Civil Court''s jurisdiction u/s 9, CPC, is open where action taken is without jurisdiction under any Act [ see Sardara Singh (Dead) by Lrs. and Another Vs. Sardara Singh (Dead) and Others, ; Jwala Prasad v. S.N. Verma [1970] 78 ITR 352 (All.) and Full Bench decision of this Court in Civil Revision No. 293 of 1987]. In the context of the facts of the present case, ''jurisdiction'' means legal authority to initiate proceeding according to the means which the Act has provided subject to limitations imposed by the Act. Therefore, jurisdiction may be qualified or restricted by a variety of circumstances, for example, if the conditions precedent to the exercise of the jurisdiction are provided under the Act, those conditions must be satisfied. In other words, if there is a complete absence of jurisdiction to initiate proceeding, or the conditions precedent to the exercise of the jurisdiction are not satisfied, viz., absence of foundation of jurisdiction the proceeding will be null and void and the Civil Court has jurisdiction.

The question then is - Whether the reference is maintainable?

Relevant portion of section 113 runs as follows:

Reference to High Court. - Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for opinion of the High Court, and the High Court may make such order thereon as it thinks fit....

Order XLVI, rule 1, runs as follows:

Reference of question to High Court. - Where, before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, or where, in the execution of any such decree, any question of law or usage having the force of law arises, on which the Court trying the suit or appeal, or executing the decree, entertains reasonable doubt, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer such statement with its own opinion on the point for the decision of the High Court.

On a joint reading of section 113 and Order XLVI, rule 1, it is clear that section 113 is subject to Order XLVI, rule 1, and that the High Court, u/s 113, read with Order XLVI, rule 1, Code of Civil Procedure, does not exercise either original or appellate jurisdiction; it is only consultative or advisory jurisdiction.

Proceeding further, a reading of Order XLVI, rule 1, indicates that in order to attract the provisions of rules for reference of question to the High Court, the decree in a suit or an appeal shall be ''not subject to appeal'', that is to say, the decree in the suit must be one from which no appeal lay, or the decree in an appeal must be such one from which no further appeal lies, in view of the expression ''not subject to appeal'' occurring in Order XLVI, rule 1. It may be stated here that CPC is not applicable to the State of Meghalaya. However, it is not disputed that the CPC is applicable in spirit in the course of the trial or appeal. Insofar as the question of administration of civil justice in some places of the State of Meghalaya where judiciary is not separated from the executive is concerned, the Rules for Administration of Justice and Police in the Khasi and Jaintia Hills shall apply. Under rule 25 of the Rules, administration of civil justice in Khasi and Jaintia Hills is entrusted to the Deputy Commissioner, his Assistant, etc. Under rule 36A, the Deputy Commissioner shall be the Court of appeal from a decision of an Assistant to the Deputy Commissioner, and the High Court shall be the Court of appeal from the original decision of the Deputy Commissioner if the value of the suit is Rs. 500 or over. Therefore, the decree made in the present suit is appealable to the Deputy Commissioner. Since the decree is appealable, no reference can be made u/s 113, read with Order XLVI, rule 1. In that view of the matter, without deciding the questions referred to us, the reference is returned to the Assistant to the Deputy Commissioner, Shillong. Office shall send back the records. The reference is disposed of, accordingly. Interim order passed, if any, stands vacated.