UNION OF INDIA Vs. BOLLA VEERABHADRAM DIED

JUDGEMENT

(1.) This LPA arises out of the judgment of the learned Single Judge in Appeal No. 1000/79. The Defendant - Union of India is the appellant. The plaintiff filed a suit for recovery of Rs. 25,000/- paid by her towards estate duty assessed in respect of the estate of her deceased father-in-law late Marine Satyanarayana Murthy. It is not necessary to refer to the pleadings in detail in the plaint as well as in the written statement in the light of the view which we propose to take in the LPA.

(2.) Pursuant to attachment of the property belonging to her minor sons thee state duty authorities approached her (plaintiff) to pay the amount of estate duty. She paid about Rs. 25,000/- under protest and filed the suit under question for refund of the same on the ground that she is not liable to pay the estate duty.

(3.) In the written statement various pleas were taken. One amongst the various other pleas is that she is in possession of Ac. 1-79 cents and Ac.1-80 cents settled by her husband in her name which is subject to a charge of the Estate duty and, therefore, she is liable to pay the estate duty and the payment of Rs. 25,000/- made by her is legal and valid. It is further pleaded that she is not entitled for refund of the said amount. On the basis of the said pleadings, the trial Court decreed the suit. On appeal, the learned single Judge dismissed the appeal. Aggrieved by the same, the Union of India filed the present LPA. It is not necessary to refer to various other arguments advanced by the learned Counsel in view of the judgment of the Supreme Court in CIT vs. Parmeshwari Devi Sultania wherein the Supreme Court considering the scope of Section 293 of the Income Tax Act, 1961 held as follows: "The High Court did not approach the question in its proper perspective. It failed to consider the effect of the decree if passed in the suit on the ; order under Section 132 (5) or other proceedings under Section 132-B. , Section 293, as it originally stood, provided that 'no suit shall be brought in any civil Court to set aside or modify any assessment or order made under this Act. The word 'assessment' was omitted and the words 'proceeding taken' were inserted in its place. This made the section more comprehensive in nature. Direct effect of the decree in the suit would be that the gold ornaments, subject matter of this suit, would be taken out of the order of the ITO under Section 132 (5) and would not be available to be applied in proceedings under Section 132-B. xx xx xx When the plaintiff was unable to get the release of the seized gold ornaments, allegedly belonging to her mother, under the provisions of the Act, she could not by filing a partition suit indirectly get a decree to have a finding that the gold ornaments belonged to her mother and that she had right to claim her share therein. It she succeeded in her claim this will have direct effect on getting that order of the ITO under Section 132 (5) set aside or modified to that extent. This Section 293 does not permit. The decree if passed in a suit would not only affect share of the plaintiff which she was seeking on partition of the gold ornaments, but also whole of the ornaments 21 gms., would get affected and taken out of the order under sub-section (5) of Section 132. Section 293 is quite specific and does not admit of any ambiguityif ultimately a suit is to result in a decree or order which sets aside or modifies any proceeding taken or order made under the Act, that suit would not be maintainable. The Court is not concerned with the frame of the suit as such but to see the ultimate result to which the suit would lead to. In the present case, both the Commissioner and Union of India had been impleaded as defendants. On pleadings of the parties, an issue would have to be framed on the validity of proceedings under Section 132 which could not be permitted in view of the bar contained in Section 293." It is a case where there was a raid under Section 132 of the Income Tax Act and seizure of certain properties belonging to the step-brother of the plaintiff in the suit. After the raid and seizure the plaintiff filed the suit for partition of the plaint schedule property including the property which was the subject matter of the said seizure. The objection that was raised by the Union of India in the suit was that the suit was not maintainable. The matter ultimately went up to the Supreme Court. The Supreme Court held that the suit is not maintainable.