J P SHARMA Vs. PHALTON SUGAR WORKS LTD

JUDGEMENT

(1.) BY this application, the petitioner, Income-tax Officer, Companies Circle II (3) Bombay, applied for a certificate to file an appeal against the decision of this Court in a Writ Petition under Article 326 of the Constitution (Misc. Appln. No. 99 of 1962, D/- 4-8-1962, (Bom) ). In that application, the Phalton Sugar Works Ltd. , a company registered under the Companies Act, now the respondents before us in this application, were assessed to Income-tax for the assessment years 1949-50 and 1950-51. On 5th March 1958, the Income-tax Officer, Special Circle, Bombay, served on the Phalton Sugar Works Limited, two notices under Section 34 (1) (a) of the Act for the purposes of re-assessing their income for the assessment years 1949-50 and 1950-51, on the ground that he had reason to believe that the income for those years had escaped assessment or had been under-assessed. It was these two notices which were challenged by the Phalton Sugar Works In the Writ petition before this Court. In their petition, the Phalton Sugar Works Limited, prayed for the issue of a writ of certiorari or a writ in the nature of certiorari or other writ, direction or order under Article 226 of the Constitution, for quashing or setting aside the said two notices. They also prayed for the Issue of a writ in the nature of Mandamus or Prohibition or any other writ, direction or order under Article 226 of the Constitution, restraining and prohibiting the Income-tax Officer, the respondent to that petition, his servants and agents, from taking any steps and/or proceedings in enforcement, furtherance, pursuance or implementation of any of the said notices. By our order of 4th August 1962, the Writ Petition was allowed, and this Court made an order, quashing the aforesaid two notices, and also made a further order restraining the respondent (the Income-tax Officer) from taking any steps or proceedings in enforcement, furtherance, pursuance or implementation of any of the said notices. The petitioner before us, namely the Income-tax Officer, Companies Circle II (3) Bombay, has now applied for a certificate under Article 133 (1) (a) (b) and (c) of the Constitution of India.

(2.) THE material part of Article 133 (1) (a) (b) and (c) is in following terms:

(3.) THE expression "civil proceedings" has not been defined in the Constitution. It has now been generally accepted that proceedings involving the assertion or enforcement of a civil right are civil proceedings. The question is whether the proceedings initiated by the respondents by filing the aforesaid writ petition was a civil proceeding. The question, indeed, is not free from difficulty. The decisions, however, to which reference has been made by Mr. Palkhiwalla, afford assistance. The earliest decision is a decision of the Full Bench of the Patna High Court, reported in Tobacco Manufacturers (India) Ltd. v. The State, (1951) 2 STC 73 : (AIR 1951 Pat 29 ). In that ease, a certificate under Article 133 of the Constitution was ashed against the decision of the High Court on a reference by the revenue authorities under Section 21 (3) of the Bihar Sales Tax Act, 1944. The Full Bench held that the decision of the High Court on the said reference was not a 'judgment' within the meaning of that term as used in Article 133 of the Constitution. It was further held that the decision of the High Court also did not arise out of the 'civil proceedings' within the meaning of that Article. At p. 100 (of STC) : (at p. 42 of AIR Pat) of the report it is observed: