M CHETTIAPPAN Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THESE applications have been filed for the grant of a certificate under article 132(1) and article 133(1)(a) and (c) of the Constitution of India for preferring appeals against the judgment of this court in W.Ps. Nos. 1374 to 1378 of 1961 The aforesaid writ petitions were filed under article 226 of the Constitution for the issue of writs of prohibition or other appropriate writs or orders restraining the respondent, the Income-tax Officer, Karaikudi, from enforcing the collection of arrears of income-tax due, about Rs. 19 1/2 lakhs, from the petitioner for the assessment years 1952-53 to 1956-57. The Income-tax Officer treated the petitioner as the principal officer of the association of persons under section 2 of the <ACT>INCOME TAX ACT, 1922</ACT>, and assessed him in such capacity. There were appeals to the Assistant Commissioner and to the Appellate Tribunal thereafter. There were also proceedings before the High Court on a reference under section 66(1) of the <ACT>Indian Incometax Act</ACT>. The result of these proceedings was that it was held that the assessment proceedings for the assessment years 1952-53 to 1956-57 treating the petitioner as the principal officer of the association of persons under section 3 of the <ACT>Indian Incometax Act</ACT> were valid. After the termination of the reference in this court the department has been making several attempts to collect the arrears of income-tax due from the petitioner but without any resultThe petitioner thereafter filed the writ petitions aforesaid on the ground that section 3 of the <ACT>Indian Incometax Act</ACT> has conferred an unguided and arbitrary power on the Income-tax Officer to assess the same income either on the association as such, or the members thereof individually at his sweet will and pleasure, and that the said provision offends article 14 of the Constitution.

(2.) THE main complaint of the petitioner was that under section 3 the officer was clothed with such uncontrolled and unregulated powers which at the sweet will and caprice of the department can be successfully used to discriminate between associations and members thereof similarly situated. A Bench of this court of which one of us was a member dismissed the writ petitions holding that the charging section, section 3 of the Act, does not offend article 14 of the Constitution, and it has not conferred any such arbitrary or despotic power on the department as contended by the petitioner. THE petitioner now prays for the issue of a certificate claiming that the case satisfies the requirements of articles 132(1) and 133 of the ConstitutionOn behalf of the department the objection is raised that no certificate under article 133 can be granted as the writ proceedings arise out of revenue proceedings and do not relate to any civil proceeding within the meaning of article 133. It is objected that under article 132(1) no certificate can be granted as the case does not involve a substantial question of law as to the interpretation of the ConstitutionWe shall first take up the question as to how far the petitions satisfy the requirements of article 133. THE question as to whether proceedings in relation to the assessment, levy and collection of income-tax or other tax from an assessee would amount to a civil proceeding within the meaning of article 133 of the Constitution has come up for consideration before the several High Courts and the preponderance of opinion is that these proceedings cannot be said to be civil proceedings within the meaning of article 133 of the Constitution. In a recent judgment of a Bench of this court, of which one of us was a member, First Additional Income-tax Officer v. R. Shanmugha Rajeswara Sethupathi, the scope of article 133 in an identical situation was considered and on a consideration of the relevant case law it was held that proceedings for assessment of income-tax were not civil proceedings within the meaning of article 133. We may also add that subsequent to this Bench decision of this court, a Bench of the Bombay High Court in J. P. Sharma v. Phalton Sugar Works Ltd. has taken the same view, holding that the proceedings relating to the liability to pay income-tax partake the character of revenue proceedings and are not civil proceedings within the meaning of article 133 of the ConstitutionLearned counsel for the petitioner realising the binding nature of the Bench decision of this court in First Additional Income-tax Officer v. R. Shanmugha Rajeswara Sethupathi, however, contended that this decision requires reconsideration in view of certain observations contained in a subsequent Full Bench decision of this court in Southern Roadways v. Veeraswami Nadar as well as by reason of the recent decision of the Supreme Court in State of Uttar Pradesh v. Vijay Anand. On a careful examination of the two decisions aforesaid, we are clearly of the opinion that the petitioner has not made out any case for a fresh consideration of the question which has already been decided by the Bench decision of this court referred to aboveBefore dealing with the arguments of learned counsel for the petitioner it is necessary to set out the rationale and the precise scope of the decision in First Additional Income-tax Officer v. R. Shanmuga Rajeswara Sethupathi1. Articles 132 to 136 of Part V of the Constitution which deal with the jurisdiction and the powers of the Supreme Court have deliberately employed different language using different well-known expressions, civil proceeding, criminal proceeding, other proceeding and any cause or matter. Article 133 is specifically confined to a judgment, decree or final order in a "civil proceeding" of a High Court while article 134 is confined to judgment, final order or sentence in a criminal proceeding of a High Court. In striking contrast to this and in juxtaposition with civil and criminal proceeding, article 132 takes within its ambit any judgment, decree or final order of a High Court, whether in a civil, criminal or other proceeding.

(3.) THAT question, namely, the character of the proceedings under article 226, will have to be determined with due regard to the nature of the relief which was asked for and granted or refused. In our opinion, the proceeding under article 226 will necessarily take its colour from the nature of the original proceeding before the inferior tribunal. There are several kinds of jurisdiction which have been vested in the inferior tribunal under a variety of special legislations and in all these cases the party aggrieved can invoke the jurisdiction of the High Court under article 226 on the ground that there is an infringement of a fundamental right or excess of jurisdiction. According to the argument of learned counsel all these proceedings must be held to be civil proceedings merely because the complaint is the infringement of a fundamental rightThere is no foundation for the view that civil and criminal jurisdiction exhaust the list of jurisdictions that are conferred upon the High Court by the Constitution and under the Letters Patent. There can be a proceeding which is neither civil nor criminal and whether a particular writ application is in the nature of a civil proceeding or criminal proceeding or other proceeding will depend upon the facts of each case, and no uniform rule can be formulated in the nature of thingsWe are of the opinion that the real test is the character of the proceedings themselves (before the inferior tribunal) which are the subject-matter of the particular application under article 226 whatever it be, that constitutes the proceedings as civil, original or other proceeding. For the application of this test, it makes no difference whatsoever, whether the application under article 226 is either for the issue of a writ of prohibition or a writ of certiorari or a writ of mandamus. The quality and matter of an application for the writ must be decided according to the subject-matter dealt with in that application, and how in its ultimate effect it would react upon and affect the proceedings before the inferior tribunalAmple support for this view is found in several decisions in England in which section 47 of the English judicature Act of 1873, which prohibited an appeal from any judgment of the High Court "in any criminal cause or matter came up for consideration.