Mr1. Htm Nalini

JiuJ.h . •• ilfrs. /solyru Sorojba.shini Bo!t

F1hru"1J 19.

306 SUPREME COURT REPORTS (I9e2) SUPP.

house simply because Mrs. Boso said in hnr appli

cation for letters of administration that the house belonged to Mrs. )fitter. It 11p1wars th:it after the death of Mrs. '.\Jitter the thrt>e sisterR put forward three separate wills each in her f:wour and there was no question of one sister acting on Any representation made by another. 'Ve are therefore Of Opinion that llO question of PS(Oppcl ariRf'8 in this case.

The appeal therefore fails and is hereby dismissed: N(• order as to costs.

Appeal dismissed.

;\tfS. SOORAJ!lfULL NAGAR:'IIULL

"· COM.\IISSIONER OF IXCO:llE-TAX, CALCUTTA

(And connected appeal)

(~. K. DAS, III. HIDAYATGLLAH and .J.C. SHAIJ, J.T.)

Income Tax-Order nf Tribu.nal--Application.s by a.<S<ssee and Commi., sioner of Income-tax to state a cn.se, diJJmissr.d byl lliqh Court-Appeal to Supreme rourt ag1inst nr.kr ofTri.huna -If maintainable-Indian /ncomr-ta.t Act, J.~22 (II of /.922)' ss. 33(4), 66(2)-Cons!itution of India, Art. 130.

The Income-tax Appellate Tribunal pa.scd an order •· 33(4) of the Indian Income-tax Act disposing of an appeal.

The asscssec as well as the Con1mis., ioner of Incorne-tax, Calcutta, applied to the High Court for orders requiring the Tribunal to state a case under s. 66(2), wl1ich applications were dismiss1:d by the 1-Iigh Court. l'hc asscssce ancl the Commissioner of Income-tax appealed to thr: Suprcu1c- Court against the order of the Tribunal, ":ith speci::tl leave. rhc main contention before the Supreme Go1:rt was that cvi:o:n if the appeal .agaiust the order of the Hih Court under s. 66(2) fails on merits, the court has pO\VCr to consider the appeal against the order of the Tribunal.

Held, that when the aggrieved party approaches the High Court under a taxing statue for an order calling for a statement of the case and the High Court rejects the application, this Court in exercise of its powers under Art. 186 of the Constitution of India will not in the absence of special or exceptional circumstances allow the order of the High Court to be by-passed by entertaining an appeal directly against the order of the Tribunal under the taxing Act.

The Supreme Court will take this view even if an appeal has been filed aga>nst the order of the High Court as well.

Ohandi Prasad Ohhokhani v. State of Bihar, ( 1962) 2 S.C.R. 276, Dhakesv:ari OottonMills Ltd. v. Oommissioner of Incomelax, West Bengal, [1955] I S.C.R. 941 and Sardar Baldev Singh v. Oommissioner of Income-tax, Delhi and Ajmer, [1961]1 S.C.R. 482, followed.

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 238 and 239 of 1961.

Appeals by special leave from the judgment and order dated March 28, 1957, of the Income-tar Appellate Tribunal (Calcutta Bench) in I.T.A. Nos. 722 and 7341 of 1954-55.

R. J. Kol, ah, D. H. Dwarkadas and B.P. Mahe, shwari, for the appellant in C.A. No. 238 of 1961 and the respondent in C.A. No. 239 of 1961.

K. N. Rajagopala Sastri and D. Gupta, for the respondent in C.A. No. 238 of 1961 and respondent in C.A. No. 239 of 1961.

1962. February 19. The Judgment of the Court was delivered by

SHAH, J.-The assessees and the Commissioner have preferred appeals against the order of the Tribunal passed under s. 33( 4) of the Indian Income-tax Act, after their applications of the High Court of Calcutta for orders requiring the Tribunal to state a case under s. 66(2) Wtlre dismissed.

Counsel for the :1Ssessees contends that everi if his appeal against the order of tbe High Court under s. 66(2) fails on the merits, this Court has

M/s. Soorajmull Nagarmull v.

OommiJsiontr of lncometax, Calcuttr

Shch J,

/&Ifs. Sootajrn-l!i

Nag"rmull

•• Com'ninionr rJ

Jncomtat, Ca/c 1t'

Sh2h J,

308 SUPREME COURT REPORTS [l!l62] SUPJ'.

power to consider their appeal against the order of the Tribunal. This Court in Chandi Prawd Chhokhani v. The State of Bihm,(') in dealing with cirnes where against the order passed by a Tax Tribunal, without appealing against the order of the High Court refusing tr, call for the statement of the case set out the practice as follows:

(a) When• the aggrieved party approaches the High Court under a taxing Stntute

for an order cnlling for a statement of the caso and the High Court r<jects the appiication, this Court in exercise of itll powers under Art. 136 will not ordinarily allow the order of tho High Court to be by-passed by entertaining an appeal directly against the order of the Tribunal.

Such exercise of power wou Id be particularly inadvisable where the result may be conflict of decisions of two Courtil of competent jurisdiction. The schemo of tho taxing statutes is to avoid such a conflict by making the derision of the taxing authorities on questions of fact final subject to appeal, revision or review 118 provided by the statutes and the decision of tho High Court subject to appeal lo this Court final on questions of law.

(b) This rule does not Lar the Court from

granting special leave where circumstances are exceptional, such as, in Dlwkeswari Cotton Mills Dd. v. Commissioner of Income 'Ia; r,, IV e.st Bengal, (') ll'herc the

Tribunal had violated fundame11tal rul<'s

of justice or as in Srudnr Ba/Jiev Singh v ..

Commissioner of hmmzetax, Delhi & Ajmer ('), where on uccount of special circumstances over which the aggrieved party has no control the High Court was

(I) [1962] 2 S.C.R. 2;6. (2:

[19551 I. S.C.R. 94:.

(:J) [1%1) I SC.R.48!.

unable to consider the application for

196S calling for a statement of the case on the .M /s. &moJmu/l merits, and the right of the party to N, garmutl approach the High Court was thereby Cammi~;-, • ., of lost. _Income-tax, Calcuua

Counsel for the assesses contended that in Ghhokha.ni's case(') no appeal at all was filed by the assessees against the order of the High Court and the principle of that case is inapplicable in a case where the aggrieved party has appealed against the order of the High Court as well as against the order of the Tribunal. It is true that in the case before us appeals have been filed against the order of the Tribunal deciding the appeal under s. 33(4) of the Indian Income-tax Act as well as the order of the High Court under s. 66(2) refusing to require the Tribunal to state a case: but we fail to see any distinction in principle between a case in which in appealing against the order of the Tribunal no appeal is filed against the order of the High Court and a case in which an appeal is filed against the order of the Tribunal as well as against the order of the High Court and the latter appeal is dismissed because it has no merit.

Counsel has not invited our attention to any special or exceptional circumstances in this case.

We have heard elaborate arguments on behalf of the assessees and the Commissioner on their respective contentions and for reasons already set out are of opinion that no case is made out for calling for a statement of the case from the Tribunal. If we proceed to hear the appeal against the order of the Tribunal after upholding the order of the High Court that no question of law arose out of the order of the Tribuna I, it would be a departure from the well-settled rule that ordinarily we do not exercise of our jurisdiction under Art. 136, enter upon a reappraisal of the evidenceon which the order of

(l) [!961] 2. S.C.R. 276.

JY62.

M /s~ SooraJmull

.Nagai mull

v. . Commi.s.fiontr pf

lncome-ta.t, Calcutt..i

Shah J.

FebruaT)' 191 '

' SlO SUPREME COURT REPORTS (1962] SUPP. ,, .

the Oovrt or Tribunal is founded.

The Legi.slature has expressly entrusted th~ powei:- of appraisal of f!Vidence to the T.axing authorities, and the decision

of those authorities would orqinarily be regarded as final.

This is not to say that in a proper case this Court m; i.y not, in the interest of justice. when occasion demands it, review the evidence. "Tli:e" power of this Court unde~ Art. 136 is not restricted; but it is only in very exceptional cases that this Court enters upon appraisal of evidence in appeals filed with special leave and this case does not disclose any such exceptional circumstances. ' On this ground the appeals Nos. 238 and 239 of 1961 filed by the assessees and the Commissioner against the order of the Tribunal must fail and are dismissed with costs. One hearing fee.

Appeals dismissed.

INDORE MALWA UNITED MILLS LTD.

THE COMMISSIONER OF INCOME-TAX

(CEN'J."'RAL) BOMBAY

...

(S. K. DAS, M. HIDAYATULLAH and J.C. SHAH, JJ.) 1

Income Tax-Propeedings under s. 24 of the Indian Income-ta:& Act,-Scope and effect of section and its proviso- Set-off of loss-Indian Income-ta:& Act, 1922 (11 of 1922). as 24(1), (2), 14(2) (c), 4(1) (a); (c)l . ' The assessce company carried on a business of manufacture and sale of textile goods. The manufacture was111ade ac its mills in Indore which was an Indian State before integra• tion and had its own law as to income-tax known as the Indore Industrial 'rax R,; les, 1927.

The sales of textile goods so manufacttlred wer~ made 'at various places, some inside and some outside the taxable territories of the then British India.

For and tipfo assessment' year 1949-50 the assessee company was treated as a pon-resident.

Indore became a part of the taxable territories within the meaning of the Indian