Proceedings initiated by an assessee by filing a writ petition challenging notices issued by the Income-tax Officer under Section 34(1)(a) of the Income-tax Act, 1922, are not civil proceedings but revenue proceedings.

Headnote:
INCOME TAX - CERTIFICATE UNDER ARTICLE 133 - WRIT APPLICATION - REVENUE PROCEEDINGS - NOT CIVIL PROCEEDINGS - NO RIGHT OF APPEAL - INCOME-TAX ACT, 1922, SECTION 34(1)(A) - CONSTITUTION OF INDIA, ARTICLES 132, 133, 134, 136, 225, 226, 227.
Fact of the Case:

The petitioner, Income-tax Officer, applied for a certificate to file an appeal against the decision of the Bombay High Court in a writ petition under Article 326 of the Constitution. The writ petition challenged two notices issued by the Income-tax Officer under Section 34(1)(a) of the Income-tax Act, 1922, for re-assessing the income of the assessee for the assessment years 1949-50 and 1950-51.
Finding of the Court:

The Bombay High Court allowed the writ petition and quashed the notices. The petitioner contended that the judgment of the High Court was a judgment in a civil proceeding and, therefore, he was entitled to a certificate under Article 133 of the Constitution.
Issues: Whether the judgment of the Bombay High Court in the writ petition was a judgment in a civil proceeding and, therefore, the petitioner was entitled to a certificate under Article 133 of the Constitution.
Ratio Decidendi: The Court held that the judgment of the Bombay High Court in the writ petition was not a judgment in a civil proceeding. The Court observed that the proceedings initiated by the assessee by filing the writ petition were not civil proceedings but revenue proceedings. The Court further observed that the expression "civil proceedings" in Article 133 of the Constitution does not include all proceedings except criminal proceedings. The Court also held that the fact that the assessee sought to challenge the notices issued under Section 34(1)(a) of the Income-tax Act, 1922, by filing a writ petition under Article 226 of the Constitution did not change the nature of the proceedings from revenue proceedings to civil proceedings.
Final Decision: The Court dismissed the petitioner's application for a certificate under Article 133 of the Constitution.

JUDGMENT - 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:

"133. (I) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a Civil proceeding of a High Court in the territory of India if the High Court certifies -

(a) that the amount or value of the subject-matter of the dispute in the Court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or

(b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or

and, where the judgment, decree or final order appealed from affirms the decision of the Court immediately below in any case other than a case referred to in Sub-clause (c), if the High Court further certifies that the appeal involves some substantial question of law."

It would be seen, therefore, that a party that claims a certificate under Clause (1) of Article 133 under any one or more of the Sub-clauses, has to establish that there has been a judgment, decree or final order in a civil proceeding of a High Court. It is not in dispute before us that the order made by this Court on 4th August 1962 would be a judgment, decree or final order within the meaning of Clause (1) of Article 133. Mr. Palkhiwala, appearing for the respondents, however, raises a preliminary objection that the judgment of this Court of date 4th August 1962 is not a judgment in a civil proceeding. His argument Is that the relief sought by the respondents In the writ petition was a Writ in the nature of Certiorari, quashing the notices issued under Section 34 (1) (a) of the Income-tax Act; or a writ

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