Calcutta H.C : The present writ petition has been filed for the issuance of a writ of mandamus commanding respondents Nos. 1 to 4 to forbear from giving effect to the appellate order of the Tribunal dt. 19th Nov., 1987

High Court Of Calcutta

Namita Mukherjee vs. Income Tax Appellate Tribunal & Anr.

Section ED 5, Art. 226

Susanta Chatterjee, J.

Case Referred No. Nil of 1988

27th September, 1988

Counsel Appeared

Nirmal Mukherjee & S. K. Banerjee, for the Petitioner : N. L. Pal, for the Respondents

SUSANTA CHATTERJEE, J.:

The present writ petition has been filed for the issuance of a writ of mandamus commanding respondents Nos. 1 to 4 to forbear from giving effect to the appellate order of the Tribunal dt. 19th Nov., 1987, and subsequent orders dt. 17th May, 1988, and 27th July, 1988, as fully described in the writ petition itself. It is stated that in the course of hearing of the assessment under s. 58(2) of the ED Act, 1953, before the Asstt. CED, furnishing a genealogical table and claiming that the house property was absolutely owned by her, the Appellate CED, by his order dt. 2nd Sept., 1986, negatived the contention of the petitioner that she was the owner of the said house property and that such property did not pass on the death of the deceased. Being aggrieved, the petitioner filed an appeal before the Tribunal contending, inter alia, that the said D. P. Mukherjee died intestate leaving him surviving his widow and three sons. According to her, the assessment was made without impleading all the legal heirs for complete representation of the estate of the deceased, and it has rendered the proceeding wholly invalid and inoperative.

The said appeal was disposed of by the Tribunal, Calcutta “C” Bench, by an order dt. 19th Nov., 1987. The petitioner subsequently filed an application being M.A. No. 48(Cal) of 1988, which came up for hearing on 8th July, 1988, before the Tribunal and the Tribunal was of the opinion that there was no point in reopening the matter. The petitioner thus being aggrieved by the order of the Tribunal dt. 19th Nov., 1987, and the subsequent orders as aforesaid, filed the present writ petition on the ground that the Bench of the Tribunal consisting of Sri. D. N. Sharma and Sri B. C. Mitra had heard and decided the appeal and unless the Bench consisting of the same Members hear the reference, it would be contrary to the provision of r. 40 of the IT (Tribunal) Rules, 1963, and the provisions thereof have to be r/w sub-s. (2) of s. 63 of the ED Act. It is also stated that on a true interpretation of the charging s. 5 of the ED Act, 1953, estate duty cannot be levied on the value of the property situated in the State of West Bengal. The learned advocate appearing for the petitioner has strenuously argued by referring to the provisions of s. 5 of the ED Act and to the Schedule, and laid emphasis that there is an error of jurisdiction in making the assessment and this writ Court is the proper forum to ventilate the grievance of the petitioner.

Mr. Pal, appearing for the respondent-authorities, has opposed the writ petition submitting, inter alia, that looking to the entire background of the case and the provisions of the ED Act, there is nothing left to reagitate the matter once again before this writ Court.

Having anxiously considered the contentions as raised in the writ petition, this Court finds that under r. 40 of the Income-tax (Tribunal) Rules and Orders relating to the Tribunal, the Bench, which heard the appeal, shall hear it unless the President directs otherwise. Looking to the rules and regard being had to the background of the case, it is found that one of the Members of the Bench, who heard the appeal, retired in the meantime, and the remaining Member along with another Member heard the matter under reference for disposing of the subsequent application of the petitioner. This Court finds by a harmonious construction of the rule itself that the Bench should be referred to which was competent to hear the reference. After superannuation of one of the Members, if the Bench which was competent to hear the appeal has disposed of the revision application, the petitioner cannot urge that there is prejudice caused to the petitioner and the writ Court having discretionary power should interfere with the matter.

With regard to the applicability of the charging section as envisaged in s. 5 of the ED Act, it will appear that the Tribunal has considered the entire matter as to the assessment order by complying with the test laid down in several decisions of this Court and the Hon’ble Supreme Court. This Court does not find that there is any error of jurisdiction in making the assessment invalid in law for which there will be interference by the writ Court.

Considering all the aspects of the matter, this Court does not feel inclined to interfere with the matter. Hence, the writ application is rejected.

[Citation : 176 ITR 73]

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