Income Tax Act, 1961 – s.293 – One late ‘KL’ and his son ‘PG’ constituted HUF which owned the subject property standing in their joint names, also having other properties at Calcutta –‘KL’ instituted suit in 1957 before the High Court of Calcutta against ‘PG’ claiming the subject property including other properties as his self-acquired properties – Respondents are the sons of ‘PG’– Appellants are the legal heirs of late VNV, who was the lawyer of ‘KL’ and who purchased the subject property in open auction conducted by the Income Tax Department – In 1985, the respondent nos.1-3 filed Title Suit in Delhi inter alia seeking declaration to continue to be the owners of the suit property – Said respondents also filed Writ Petition No.18500(W) of 1985 against the Union of India and the appellants in the High Court of Calcutta for declaring that the purported sale to VNV and issuance of the confirmation certificate of sale is null and void – Judgment reserved by High Court of Calcutta in March/April, 1986 – Writ Petition dismissed by the Single Judge of the High Court on 26 th Oct. 1990 – In the meanwhile, the Title Suit was dismissed on 3 rd Oct. 1986 – Respondents filed application for recalling the order dtd. 26th Oct. 1990 and for deciding the writ petition on merits – Single Judge of the High Court of Calcutta vide order dtd. 20th Nov. 1998 recalled the order dtd. 26th Oct.1990 inter alia with the direction to hear the matter on merits– Appellants filed appeal– Division Bench of the High Court of Calcutta did not interfere – Appellants filed SLP – Dismissed – Thereafter, appellants filed application in the disposed of Writ Petition No.18500(W) of 1985 inter alia praying that the respondents be restrained from proceeding with any advertisement for sale of suit property– Single Judge of the High Court vide order dtd. 31st March, 2006 held that the application was not maintainable – Respondents filed appeal – Dismissed vide order dtd. 19th Oct. 2012– Respondents filed Review Application against the said order and the order dtd. 31St March, 2006 – By the impugned order, the order dtd. 19th Oct. 2012 was reviewed and consequently the order dtd. 31st March, 2006 was also set aside, directing the Writ Petition No.18500(W) of 1985 to be heard on merits – On appeal, held: s.293 puts complete bar of filing suit in any civil court against the revenue/income tax authority – Mandate of law remained unnoticed when the Single Judge of the High Court in Writ Petition No. 18500(W) of 1985 passed order on 26th Oct. 1990 relegating the parties to address in the alleged pending Civil Suit No. 471 of 1985 in Delhi although it was dismissed much prior to the pronouncement of the Judgment dtd. 26th Oct. 1990 – Even in the LPA, either party did not bring it to the notice of the Court, the mandate of law as envisaged u/s.293 – High Court took note of the same in its review jurisdiction concluding that there appears to be an error apparent on the face of record and consequently allowed the application for review, recalling the order dated 19th Oct. 2012 and setting aside the order dtd. 31st March, 2006 – In the facts and circumstances, the issues on merits raised in the Writ Petition No.18500(W) of 1985 not dilated upon – But, if the civil suit was not maintainable as alleged in view of s.293 and this was the purported defence of the respondents and of the Income Tax Department, no party could be left remediless and whatever the grievance, the party has raised before the Court of law, has to be examined on its own merits – No error committed by the High Court in passing the impugned judgment –Writ Petition No.18500(W) of 1985 be decided by the High Court of Calcutta on its own merits, expeditiously as possible – Code of Civil Procedure, 1908 – Or. 9, r.2.
Practice & Procedure – Review – Principles for – Discussed – Code of Civil Procedure, 1908 – s.114.
Dismissing the appeal, the Court
HELD : 1.1 Section 293 of the Income Tax Act, 1961 puts a complete bar of filing suit in any civil court against the revenue/income tax authority and the mandate of law remain unnoticed when the order came to be passed by the Single Judge of the High Court in Writ Petition No.18500(W) of 1985 decided on 26th October, 1990 while relegating the parties to address in the alleged pending Civil Suit No. 471 of 1985 before the District Judge at Delhi although it was dismissed much prior to the pronouncement of the Judgment dated 26th October, 1990. Even in the LPA, the Division Bench of the High Court granted liberty to the respondents to file a fresh civil suit in respect of the subject property in Delhi and either party has not brought to the notice of the Court the mandate of law as envisaged under Section 293 of the Income Tax Act, 1961 that the civil suit against the Income tax Department is not maintainable under the law, which appears to be mistakenly omitted by the Court in arriving at the rival claims of the parties. It was taken note of by the High Court in its review jurisdiction and arrived to the conclusion that there appears to be an error apparent on the face of record and consequently allowed the application for review, recalled the Order dated 19th October, 2012 and set aside the Judgment and Order dated 31 st March, 2006 passed in miscellaneous application and for restoration of Writ Petition No. 18500(W) of 1985 to be heard on its own merits under the impugned judgment dated 24 t h September, 2014. [Paras 26-27] [1202-C-G]
1.2 The effect of Section 293 of the Income Tax Act has been mistakenly omitted under the judgment in review and that apart, the consequential effect of the order of the High Court on an application filed by the Union of India in Civil Suit No. 1451 of 1957 dated 8th September, 1965 was open to be examined in the writ proceedings and it was the defence of the Income Tax Department in the reply to the review application and also before this Court in their counter affidavit that in the auction sale which was held in the month of August, 1964, the permission from the Court was not obtained and after the order came to be passed on their application by the Single Judge of the High Court in Suit No. 1451 of 1957 dated 8th September, 1965, it will certainly affect the auction sale held by the Income Tax Department in reference to the subject property in question and it was their stand throughout in the proceedings. The Single Judge of the High Court of Calcutta heard and reserved the judgment in Writ Petition No. 18500(W) of 1985 in March/April 1986 and after nearly four and half years, the judgment pronounced on 26th October, 1990 relegating the parties to raise all the contentions to their defence in the pending civil suit before the District Judge, Delhi itself indicates that the Single Judge was not inclined to express its opinion on merits obviously for the reason that if the finding was recorded, it would have prejudiced the rights of the parties to the litigation to be examined in the alleged pending civil suit in the District Court, Delhi which although was dismissed on 3 rd October, 1986 much before the pronouncement of the judgment dated 26th October, 1990 by the Single Judge of the High Court.[Paras 29, 30] [1204-A-F]
1.3 In the given facts and circumstances, the issues on merits raised in the Writ Petition No. 18500(w) of 1985 filed at the instance of the respondents before the High Court of Calcutta not dilated, but if the civil suit was not maintainable as alleged in view of Section 293 of the Income Tax Act and this was the purported defence of the respondents and of the Income Tax Department and consequential effect to the Order dated 8th September, 1965 of which a reference has been made, no party could be left remediless and whatever the grievance the party has raised before the Court of law, has to be examined on its own merits. There appears no error being committed by the High Court in passing the impugned judgment dated 24th September, 2014 in exercise of its review jurisdiction and that needs no interference by Supreme Court. The Writ Petition No.18500(w) of 1985 be decided by the High Court of Calcutta on its own merits, after hearing the parties, in accordance with law. Since the dispute is pending for sufficiently long time, the High Court is expected to give priority to the matter and decide the writ petition expeditiously as possible. [Paras 31-32] [1204-G-H; 1205-A-C]
Kamlesh Verma v. Mayawati and Others (2013) 8 SCC
320 – relied on.
N. Vasudeva v. Kirodimal AIR 1965 SC 440 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.