MAHARAJA AMRINDER SINGH versus THE COMMISSIONER OF WEALTH TAX

[2017] I 4 S.C.R. 590

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MAHARAJA AMRINDER SINGH

v.

THE COMMISSIONER OF WEALTH TAX

(Civil Appeal No.1349 of 2007)

SEPTEMBER 05, 2017

[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.)

Wealth Tax Act. 1957 -s.27-A - Penalty levied upon appellant assessee hy Assessing Officer - income Tax Appellate Tribunal (JTAT) C decided in favour of the appellant - High Court in appeal by revenue u/s. 27A set aside the order of ITAT and restored the order of assessment passed by the Assessing officer - Justifiahilizv of - On appeal. held: Section 27-A provides a remedy of appeal to the High Court against the order of ITAT and is pari matcria to s. l 00, CPC-For exercise o,f powers uls: JOO. CPC by High Court. existence D of substantial question o.f law is sine qua non and in the absence of such substantial question of law the appeal merits dismissal in limine -Appeal.filed uls.27-A has to be decided like a second appeal uls. JOO. CPC - Howeve1; in the instant case the High Court proceeded to decide the appeals filed by revenue uls.27A without formulating the substantial question(s) of law - Matters remanded to High Court for deciding the appeals afresh after formulating substantial questions of /av.: if it so arises - Code of Civil Procedure. 1908 - s.100.

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Doctrines/Principles - Principle of "legislation by incorporation" - s. 27-A of the 1957 Act provides a remedy of appeal to the High Court against the order of ITAT and is pari materia to s. l 00. CPC. 1908 - Held: Section 100. CPC is bodily !(fled from the Code and incorporated in s.27-A of the 1957 Act with minor additions and alterations by following the principle of "legislation by incorporation" - Wealth Tax Act. 1957 - s.27-A - Code of Civil

G Procedure. 1908 - s.100.

Allowing the appeals, the Court

HELD: 1.1 Section 2 7-A of the Wealth Tax Act, 1957 provides a remedy of appeal to the High Court against the order of the 1.ncomc Tax Appellate Tribunal and is modeled on existing H Section 100 of the Code of Civil Procedure, 1908. The language

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MAHARAJA AMRINDER SINGH v. THE COMMISSIONER OF WEALTH TAX

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of Section 27-A of the 1957 Act and Section 100 of the CPC is A identical. Both the Sections arc, therefore, in pal'i '!tatel'ia. It is a case where Section 100 is bodily lifted ftom the Code and incorporated in Section 27-A of the 1957 Act with minor additions , and alterations by following the principle of "legislation by incorporation". [Para 7) (594-F]

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1.2 In order to admit the second appeal, what is required to be made out by the appellant being sine qua non for exercise · · of powers under Section 100 of the CPC, is existence of "substantial question of law" arising in the case so as to empower the High Court to admit the appeal for final hearing by formulating C such question. In the absence of any substantial question of Jaw arising in appeal, the same merits dismissal in liminc on the ground that the appeal does not involve any substantial question of law within the meaning of Section 100 of CPC. (Para 9] (595-D]

Santosh Hazari vs. Purushottam Tiwari (Deceased) by. L.Rs., (2001) 3 SCC 179 : [2001] l SCR 948 - held applicable.

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1.3 The interpretation of Section 100 equally applies to Section 27-A of the Act because firstly, both Sections provide a remedy of appeal to the High Court; Secondly, both Sections arc identically worded and i11 pari materia; Thirdly, Section 27-A is E enacted by following the principle of "legislation by incorporation"; fourthly, Section 100 is bodily lifted from the Code and incorporated as Section 27-A in the A~t; and lastly, since both Sections are akin to each other in all respects, the appeal filed under Section 27-A of the Act has-to be decided like a second F appeal under Section 100 of the Code. (Para 10) (595-F)

1.4 On the facts of the present case, it is found that the High Court proceeded to decide the appeals without formulating the substantial qucstion(s) of law. Indeed, the High Court did not

. make any effort to find out as to whether the appeals inv!>lv.ed G

any substantial question(s) of law and, if so, which is/are that question(s) and nor it formulated such question(s), ifin i~s opinion, really arose in the appeals. The High Court failed to see that it "had jurisdiction to decide the appeals only on the question(s) so formulated and not beyond it. [Section 27(5)]. [Para 11] [595-G- H; 596-A]

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Case Law Reference

(2001) 1 SCR 948

held applicable

Para 8

CIVIL APPELLATE JURISDICTION: Civil Appeal No.1349 of

2007.

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From the .Judgment and Order dated 24.08.2004 passed by the High Court of Punjab and Haryana at Chandigarh in Wealth Tax Appeal No.IO & 11 of2001.

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WITH

Civil Appeal No.1350/2007

C.S. Agarwal, Sr. Adv., Ms. Tanuj Bagga, Bhargava V. Desai, Ms.Pushpa Sharma, Akshat Malpani, Uma Shankar, Advs. for the Appellants.

Y. P. Adhyaru, Sr. Adv., Ms.Niranjana Singh, H.R. Rao, Mrs. ·

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.Anil Katiyar, B.V. Balaram Das, Advs. for the Respondents.

The .Judgment of the Court was delivered by

ABHAY MANOHAR SAPRE, J. I. These appeals arc filed against the final judgment and orders dated 24.08.2004 passed by the High Court of Punjab and Haryana at Chandigarh in Wealth Tax Appeal E Nos. IO & I 112001 and 3.4 & 512002 respectively whereby the High Court allowed the appeals filed by the Revenue (Commissioner of Wealth Tax) under Section27-Aofthe Wealth Tax Act, 1957 (hereinafter referred to as "the Act") and set aside the order dated 05 .07.2011 passed by the Income Tax Appellate Tribunal (hereinafter reforred to as "the Tribunal"), Chandigarh Bench in W.T.A. No.I 1,12 & 13/Chandi/95 & C.0. No.37/ F Chandi/95 in W.T.A. No. I 1 /Chandi/95 and order dated 13.06.200.1 in W.T.A. Nos.213, 191 and 192/Chandi/94 and restored the order of assessment passed by the Assessing officer for levying penalty for the entire period of delay in respect of Assessment Years ~ 981-82, 1982-83 and 1983-84.

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2. Few facts need mention for disposal of the appeals.

3. The appellant is the wealth tax assessee and is subjected to payment of Wealth Tax under the Act. The case pertains to the Assessment Years 1981-82, 1982-83 and 1983-84. The issue involved in these three assessment years was decided by the Tribunal in favour of the appellant (assessee) which gave rise to filing of the appeals before

MAHA RAJA AMRINDER SINGH. v. THE COMMISSIONER OF WEALTH TAX [ABHAY MANOHAR SAPRE, J.]

593

the High Court by the Revenue under Section 27-AoftheAct questioning A therein the legality and correctness of the orders of the Tribunal. As mentioned above, the High Court allowed the appeals filed by the Revenue, which has given rise to filing of these appeals by way of special leave before this Court by the assessee.

4. The short question, which arises for consideration in ·these B

appeals, is whether the High Court was justified in allowing the appeals filed by the Revenue and thereby was justified in setting aside the orders passed by the Tribunal.

5. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals and while c setting aside of the impugned orders of the High Court remand the case to the High Court for deciding the appeals afresh on merits after formulating the substantial questions of law, ifit so arises in the case.

6. Section 27 - A of the Wealth Tax Act reads as under

"27-A Appeal to High Court. --:

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(1) The assesse.e or the Chief Commissioner or Commissioner may within one hundred twenty days of the day upon which he is served with notice ofan order under section 24 or section 26 or chmse (e) of sub-section (1) of section 35, file on or alter the 1st day of October, 1998 but E before the date of establishment of the National Tax Tribunal appe~I before the High Court.

(lA) The High Court may admit an appeal after the expiry of the period of one hundred and twenty days referred to in sub-section (1), if it is satisfied that there was sufficient F cause for not filing the same within that period.

(2) An appeal shall lie to the High Court before the date of establishment the National Tax Tribunal from every order passed in appeal by the Appellate Tribunal, under sub-section (1) of section 24 only if the High Court .is G satisfied that the case involves a substantial question of law.

(3) In an appeal under this section, the Memorandum of Appealshall precisely state the substantial question oflaw involved in the appeal.

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(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard only on the questilin so formulated and the respondent shall, at the time of hearing of the appeal, be allowed to argue that the case docs not involve such question: Provided that nothing in this sub section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question.

(6) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit.

(7) The Assessing Officer shall give effect to the order of the High Court on the basis of a certified copy of judgment · delivered under sub-section (6).

(8) The Provisions of the Code of Civil Procedure, 1908 (5 of 1908) relating to appeals to High Court shall, so far as may he, apply in the case of appeals under this section."

7. Section 27-A of the Act, which provides a remedy of appeal to the High Court against the order of the Income Tax Appellate Tribunal, is modeled on existing Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"). Indeed, as would be clear, the language of Section 27-A of the Act and Section 100 of the Code is identical. Both the Sections arc, therefore, in pari materia. It is a case where Section 100 of t_he Code is bodily lifted from the Code and incorporated in Section 27-A of the Act with minor additions and alterations by following the principle of"legislation by incorporation".

8. A three Judge Bench of this Court in Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs., (2001) 3 SCC 179 had examined the scope of Section 100 of the Code of the Civil procedure, 1908 (hereinafter referred to as "the Code"). Justice R.C. Lahoti (as His Lordship then was) speaking for the Bench laid down the following proposition oflaw in Para 9:

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MAHARAJA AMRINDER SINGH v. THE COMMISSIONER OF WEALTH TAX [ABHAY MANOHAR SAPRE, J.]

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. "9. The High Court cannot ·proceed to hear a second A

appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty case on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended B Section 100 of the Code. (Sec Kshitish Chandra Purkait v. Santosh Kumar Purkait,(1997) 5 SCC 438 Panchugopal Barua v. Umesh Chandra Goswami, (1997) 4 SCC 413 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 sec 122.)"

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9. His Lordship then in Paras I 0 to 14 succinctly explained the meaning of the words "substantial question of law" and "question of law" and held that in order to admit the second nppcal, what is required to be made out by the appellant being sine qua 11011 for exercise of powers under Section l 00. of the Code, is existence of "substantial question oflaw" arising in the case so as to empower the High Court to D admit the appeal for final hearing by formulating such question. In the absence of any substantial question of law arising in appeal, the same merits dismissal in Ii mine on the ground that the appeal does not involve any substantial question oflaw within the meaning of Section 100 of the Code.

10. Jn our considered opinion, the interpretation made by this Court of Section l 00 in Santosh Hazari's Case (supra), would equally apply to Section 27-A of the Act because firstly, both Sections provide a remedy of appeal to the High Court; Secondly, both Sections are identically worded and in pari materia; Thirdly, Section 27-A is enacted by following the prin.ciplc of"legislation by incorporation"; fourthly, Section 100 is bodily lifted from the Code and incorporated as Section 27-A in the Act; and lastly, since both Sections arc akin to each other in all respects, the 'llppeal filed under Section 27-A of the Act has to be decided like a second appeal under Section 100 of the Code.

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11. Now coming to the facts of the case, we find that the High G

Court proceeded to decide the appeals without formulating the substantial question(s) of law. Indeed. the High Court did not make any effort to find out as to whether the appeals involved any substantial question(s) oflaw and. if so, which is/arc that question(s) and nor it formulated such question(s), if in its opinion, really arose in the appeals. The High Court H

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failed to see that it had jurisdiction to decide the appeals only on the question(s) so fonnulated and not beyond it. [Section 27(5)].

12. In the light of foregoing discussion and keeping in view the law laid down in the case of Santosh Hazari (supra), we are of the considered view that the impugned orders arc not legally sustainable

B and thus liable to be set aside.

· 13. As a result, the appeals succeed and are allowed. Impugned orders are set aside. Both the cases are remanded to the High Court for deciding the appeals afresh in accordance with the observations made above.

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Divya Pandey

Appeals allowed.