RAJMAL PAHARCHAND vs COMMISSIONER OF Income Tax, EAST PUNJAB : NO. 2.

Messrs. Rajmal Paharchand of Amritsar apply for leave to appeal to the Supreme Court of India against the final order passed by this Court on 26th July, 1949, on a reference u/s 66(1) of the Income Tax Act, 1922, hereinafter referred to as the Act, made by the Income Tax Appellate Tribunal. Allahabad Bench. The right of appeal to the Supreme Court of India from such a decision is given by sub-section (2) of section 66A and is confined to cases which are certified by the High Court to be fit for appeal to the Supreme Court of India. In construing sub-section (2) of Section 66A of the Act Lord Blanesburgh said in Delhi Cloth and General Mills Company Limited v. Income Tax Commissioner, Delhi :-

"These words are textually the same as the concluding words of sub-section (c), Section 109, of the CPC and, coupled with the carefully limited referential words to the CPC in sub-section (3), suffice, in their Lordships judgment, to exclude from any right of appeal cases which fall within the requirements of Section 110 of the Code and are operative to confine that right to cases which are certified to be otherwise fit for appeal to His Majesty in Council."

That being so, the sole question for determination is whether the present case satisfies the requirements of Article 133(1)(c) of the Constitution of India. Article 133 of the Constitution of India corresponds to Section 109 of the Civil Procedure Code.

The point decided by the High Court in Reference No. 1 of 1942 is that before an Income Tax Officer can pass an order u/s 25A of the Act that the joint Hindu family property has been partitioned amongst the various members or groups of members in definite portions there must be a physical division of the joint Hindu family property. As pointed out in Gordhandas T. Mangaldas v. Commissioner of Income Tax, Bombay, the authorities in India on the point decided in Civil Reference No. 1 of 1949 are conflicting and in deciding cases u/s 25A of the Act Courts in India have expressed divergent views with respect to the rule laid down in Sundar Singh Majithia v. Commissioner of Income Tax, U. P. and C. P.

Now, the test to determine whether the case falls within Article 133(1)(c) of the Constitution of India is to see whether the point involved is of great public or private importance and is of such a nature that a decision thereon might result in a precedent governing numerous cases. Clearly, the point arising in the present case is of such a nature that a decision thereon will result in a precedent governing numerous cases. That being so, the case comes within Article 133(1)(c) of the Constitution of India and Section 109(c) of the CPC and we hereby certify that the case is a fit one for appeal to the Supreme Court of India.

Petition allowed.