SHARMA J P Vs. PHALTON SUGAR WORKS LIMITED

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 next decision is a decision of the Division Bench of the Allahabad High Court reported in Income-tax Officer v. Joti Prasad Agarwal, (1962) 44 ITR 574 : (AIR 1960 All 84). THE facts of this ease are similar to the Patna case to which we have referred. Here also, assessment orders were challenged by a writ petition before the High Court. THE application was allowed. THE Income-tax Officer, therefore, prayed for the issue of a certificate under Article 132(1) and Article 133 (1) (b) and (c) of the Constitution. It was held that the order made by the High Court was not an order made in a civil proceeding within the meaning of Article 132 of the Constitution. At page 576 (of ITR) : (at p. 85 of AIR All) of the report, it is observed: