MODI SUGAR MILLS LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is a plaintiff's appeal arising out of a suit for recovery of Rs. 73,087.69 nP. along with future interest at the rate of 6 per cent per annum and directed against the judgment dt. 23rd May, 1962, of the 2nd civil Judge, Meerut, dismissing the suit.

(2.) THE brief facts of the case are as follows : Modi Supplies Corporation Ltd. was a public limited company and dealt in the manufacture and sale of biscuits, confectionery and hurricane lanterns. In the year 1956, the aforesaid company was amalgamated with the Modi Sugar Mills Ltd. and stood dissolved w.e.f. 25th Aug., 1955, as in evident from the order of the Punjab High Court dt. 25th May, 1956 in Civil Original Petition No. 23 of 1956. It was alleged by the Modi Sugar Mills Ltd. (plaintiff) that the IT Department of the defendant assessed the defunct Modi supplies Corporation Ltd. for the asst. year 1952 -53, under the order dt. 29th March, 1957, passed by the ITO and that the assessment order was void as it was against the company which was not in existence. It was further stated that the IT Department enforced the assessment order against the plaintiff and had realised the amount of income -tax assessed against the defunct company, i.e., Modi Supplies Corporation Ltd., from the plaintiff, that the plaintiff was not an assessee under the provisions of the IT Act, hence the realisation of the amount from the plaintiff was illegal and that the ITO also acted illegally in levying a penalty of Rs. 7,000 under S. 46(2) of the Indian IT Act, 1922, upon the plaintiff. The plaintiff further alleged that since the very assessment was void, neither the penalty would have been imposed upon the plaintiff nor the amount could have been realised from it. It was also pleaded that the plaintiff -company was not made a party to any of the assessment proceedings by the IT Department against the transferor -company, hence the plaintiff could not be made liable for the assessment made on the transferor -company, and that since the amount was illegally realised under threat and coercion, the defendant was liable to refund to the plaintiff a sum of Rs. 73,087.69. Another allegation was that a notice under S. 80, CPC, had been served on the defendant through the Secretary, Ministry of Finance, Government of India, New Delhi, and, in the circumstances, the plaintiff was obliged to file a suit for the recovery of the aforesaid amount.

(3.) THE trial Court framed necessary issues arising out of the pleadings and found that the assessment order was valid, that the penalty was correctly imposed upon the plaintiff, and the tax was legally recovered from it, that the plaintiff was not entitled to any interest and was bound to pay the liabilities of the Modi Supplies Corporation Ltd., hence the plaintiff was not entitled to claim any refund, that the plaintiff's suit was not barred under S. 233(m) r/w S. 183 of the U.P. Land Revenue Act, that the plaintiff's suit was barred under S. 67 of the Indian IT Act that it was not bad for non -joinder of necessary parties, that it was not barred by limitation nor was the notice issued under S. 80 of the CPC invalid. With these findings the plaintiff's suit was dismissed with costs.