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PETITIONER: CHANDI PRASAD CHOKHANI

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT: 24/04/1961

BENCH: DAS, S.K. BENCH: DAS, S.K. AIYYAR, T.L. VENKATARAMA KAPUR, J.L. HIDAYATULLAH, M. SHAH, J.C.

CITATION:  1961 AIR 1708            1962 SCR  (2) 276  CITATOR INFO :  R          1962 SC1323  (2,6,9)  R          1962 SC1326  (5)  F          1962 SC1619  (7)  R          1962 SC1621  (115)  F          1963 SC 491  (2,3)  RF         1963 SC 835  (2,4)  HO         1964 SC 782  (8)  R          1966 SC 814  (8)  R          1967 SC 338  (2)  D          1968 SC 985  (6)  RF         1969 SC1201  (36)  R          1970 SC   1  (7)

ACT: Supreme  Court-Grant of Special  Leave--Practice--Appeal  by Special Leave-Grant, of special leave--Propriety, if can  be questioned at hearing of appeal. Sales tax--Orders of Board of Revenue in revision-Orders  of High  Court-Special leave granted against orders of  Board-- Maintainability of appeal.

HEADNOTE: The appellant firm was assessed to sales tax under the  pro- visions  of  the Bihar Sales Tax, 1944,  for  three  periods commencing  from  October 1, 1947, and ending on  March  31, 1050.  Its claim for certain deductions was disallowed,  and its  applications in revision under s. 24 Of the Act to  the Board  of  Revenue, Bihar, were dismissed  by  three  orders dated August 20, 1953, September 3, 1953 and April 30, 1954. Under S. 25(1) of the Act the appellant applied to the Board to  state  a  case to the High Court  of  Patna  on  certain questions  of  law, but the applications were  dismissed  by order dated August 30, 1954, on the ground that no questions of  law arose.  The appellant then moved the High Court  for requiring the Board to state a case on the said questions of law.   The High Court dismissed the applications in  respect of  the first two periods of assessment, but by order  dated November 17, 1934, directed the Board to state a                             277

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case  in regard to the third period on one of the  questions of  law which only, in its opinion, arose.  By its  judgment dated January 21, 1957, the High Court answered the question against the appellant.  On February 17, 1955, the  appellant made applications to the Supreme Court for special leave  to appeal  against  the orders of the Board  of  Revenue  dated August  20,  953, and September 3, 1953, in respect  of  the first  two  periods;  and on April 12,  1955,  it  similarly applied  for special leave in respect of the  third  period. Leave  was granted in respect of all the three  applications by  order  dated  December 23, 1955, the  leave  granted  in regard  to the third period being confined to the  order  of the  Board dated August 30, 1954.  When the appeals came  up for  hearing  the  question was raised  as  to  whether  the appeals  were  maintainable  in view of  the  fact  that  no applications  for  leave to appeal were  filed  against  the orders of the Board of Revenue and the High Court subsequent to the orders of the Board in respect of which only  special leave had been granted. Held, that though the words of Art.  136 of the Constitution of India are wide, the Supreme Court has uniformly held as a rule of practice that there must be exceptional and  special circumstances  to  justify the exercise  of  the  discretion under that Article. Pritam   Singh v. The State, [1950] S.C.R. 453, V.  Govinda- rajulu   Mudaliar   v.  The  Commissioner   of   Income-tax, Hyderabad,  A.I.R.  1959  S.C. 248  and  Messrs  Chimmonlall Rameshwarlal   v.  Commissioner  of  Income-tax   (Centyal), Calcutta, A.I.R. 1960 S.C. 280, relied on. Dhakeswari Cotton Mills Ltd. v. Commissioner of  Income-tax, West Bengal, [1955] 1 S.C.R. 941 and Baldev Singh v. Commis- sioner of Income-tax, Delhi and Ajmer, [1960] 40 I.T.R. 605, explained. Held, further, that in the circumstances of the present case the  appellant was not entitled to a grant of special  leave against the orders of the Board of Revenue where the  result would be to by-pass the High Court by ignoring its orders. Held,  also,  that  though special  leave  might  have  been granted on an application made under Art. 136, the Court  is not precluded from coming to a conclusion at the time of the hearing of the appeal that such leave ought not to have been granted. Baldota Brothers v. Libra Mining Works, A.I.R. 1961 S.C.C. 100, followed.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 170 to  172 of 1959. Appeals by special leave from the decision dated August  20, 1953/September 3, 1953, and August 30, 36 278 1954,  of the Board of Revenue, Bihar at Patna in  Reference Cases   Nos.  461  and  462  of  1952  and  430   of   4954, respectively. Veda Vyas and B. P. Maheshwari, for the appellant. R. C. Prasad, for the Respondent. 1961.  April 24. The Judgment of the Court was delivered by S.   K.  DAS,J.-These  three  appeals  with  special   leave granted  under Art. 136 of the Constitution have been  heard together and this judgment will govern them all.  They raise a common question as to the practice of this Court, which we shall  presently state.  But before we do so, we must  first

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set out the facts in so far as it is necessary to state them in  order to appreciate the precise nature of  the  question that has arisen for consideration in these appeals. The  relevant facts are these.  The firm of  Messrs.   Durga Dutt Chandi Prasad, appellant in these appeals, carried on a business of dealing in several kinds of goods but mostly  in raw  jute  at Sahebganj in Bihar.  It was  registered  as  a dealer  under  s. 4 of the Bihar Sales Tax Act,  1944,  with effect  from  July 1, 1946. For three  periods,  commencing from  October 1, 1947 and ending on March 31, 1950,  it  was assessed  to  sales  tax on its  turnover  of  the  relevant periods, which consisted inter alia of purchases alleged, to have  made on behalf of two other jute mills outside  Bihar, namely,  the Raigarh Jute Mills and the Bengal  Jute  Mills, and also of dispatches of jute said to have been made to the dealer’s own firm in Calcutta for sale in Calcutta.  For the assessment  period commencing on October 1, 1947 and  ending on  March 31, 1948 the appellant claimed a deduction of  (a) Rs.  6,58,880-5-9  on  the  ground  that  the  said   amount represented  purchases made on behalf of the  aforesaid  two jute  mills, and (b) Rs. 1,62,662-13-3 being  despatches  of jute made to the dealer’s own firm in Calcutta.   Similarly, for  the next assessment period commencing on April 1,  1948 and  ending  on  March  31, 1949  the  appellant  claimed  a deduction of certain amounts (the exact amounts being 279 irrelevant  for  our purpose) on the two  grounds  mentioned above  from  the  relevant  turnover.   The  claim  of   the appellant was that purchases made on behalf of the two  jute mills  aforesaid  and  the despatches of jute  made  to  the appellant’s own firm in Calcutta were not ‘sales’ within the meaning of the Bihar Sales Tax Act, 1947 (hereinafter called the Act).  For the third period of assessment commencing  on April  1, 1949 and ending on March 31, 1950 a similar  claim was made.  But for this period there was an additional claim with regard to the sale of mustard seed worth Rs.  1,00,513- 119  to Messrs.  Panna Lal Binjraj for which  the  appellant claimed a deduction. On  June 7, 1951 the Sales Tax Officer concerned  disallowed the claim of the appellant for the first two periods and  by an  order  dated  April 17, 1953, the claim  for  the  third period  was also disallowed.  The appellant  then  preferred appeals  under  the relevant provisions of the  Act.   These appeals were heard by the Deputy Commissioner of  Commercial Taxes,,  Bihar,  and  were  dismissed  by  him.   Then   the appellant filed applications in revision under s. 24 of  the Act to the Board of Revenue, Bihar.  The Board by its orders dated August 20, 1953, and September 3, 1953, dismissed  the petitions of revision relating to the first two periods  and by  its  orders  dated April 30, 1954,  also  dismissed  the petition of revision relating to the third period.  Under s. 25(1)  of the Act-the appellant moved the Board to  state  a case to the High Court of Patna on certain questions of  law which,  According to the appellant, arose out of the  orders passed.   The  Board,  however,  refused  to  state  a  case inasmuch as in its opinion no questions of law arose out  of the  orders passed.  The Board expressed the view  that  the two  questions,  namely, (1) whether the  despatch  of  jute outside the State of Bihar was a sale within the meaning  of the Act and (2) whether the purchases said to have been made on behalf of the two mills outside Bihar were liable to tax, were  both concluded by findings of fact arrived at  by  the competent  authorities on relevant materials in  the  record and were no longer open to challenge.  The appellant then 280

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moved the High Court for requiring the Board to state a case on  the questions of law which, according to the  appellant, arose out of the orders passed with regard to the first  two periods of assessment. By  an  order  dated  November  17,  1954,  the  High  Court dismissed the two applications made to it for requiring  the Board  to state a case to the High Court with regard to  the said  two  periods.  On a similar application  made  by  the appellant to the High Court with regard to the third  period of assessment, the High Court directed the Board of  Revenue to state a case on the following question:               "Whether the petitioner is entitled to claim a               deduction  on account of sale of mustard  seed               to the extent of Rs. 1,00,513-11-9 to  Messrs.               Panna   Lal  Binjraj  as  sales  made   to   a               registered dealer under the Schedule to  Bihar               Finance  Act  (no. 11) of 1949 read  with  the               Bihar Sales Tax Act (Bihar Act XIX of 1947)." By  an order dated January 21, 1957 the High Court  answered the question against the appellant.  The finding of the High Court was thus expressed:               "We are satisfied that the petitioner was  not               entitled  to  deduction of the amount  of  the               price  of mustard seed sold to Messrs.   Panna               Lal  Binjraj  for the purpose  of  manufacture               because there is no mention in the certificate               of registration granted to Messrs.  Panna  Lal               Binjraj  that  mustard seed could be  sold  to               them  for the purpose of manufacture  free  of               tax.  As the conditions imposed by the proviso               to  section 5 have not been satisfied in  this               case,   the  Sales  tax  authorities   rightly               decided that deduction of the price of mustard               seed sold to Messrs.  Panna Lal Binjraj cannot               be granted to the petitioner." On  February 17,1955, the appellant made an  application  to this  Court for special leave to appeal from the  orders  of the  Board  of  Revenue passed on the  two  applications  in revision  as  respects the first two  periods.   This  Court granted the leave prayed for by an order dated December  23, 1955.   It  should  be emphasised here  that  the  appellant prayed  for and got leave to appeal from the orders  of  the Board dated 281 August  20,  1953 and September 3, 1953 passed  on  the  two applications in revision.  No application was made for leave to  appeal,  nor was any leave granted, with regard  to  the subsequent orders made by the Board refusing to state a case or the orders of the High Court refusing the application  of the  appellant  to direct the Board to state a  case.   With regard to the third period of assessment regarding which the High  Court  had  directed the Board to state a  case  on  a particular question of law and had actually answered it, the appellant  again  made an application for special  leave  to appeal  on April 12, 1955, and this Court granted  leave  to the appellant by an order dated December 23, 1955, the leave granted being confined to the order of the Board of  Revenue dated  August 30, 1954, by which the Board decided  that  no questions  of law arose for a reference to the  High  Court. Again,  the  appellant neither asked for  nor  obtained  any leave to appeal from the subsequent orders of the High Court by  which the High Court held that only one question of  law arose  out  of the orders passed with regard  to  the  third period of assessment and directed the Board to state a  case on  that question.  Nor did the appellant move  against  the

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judgment and order of the High Court dated January 21, 1957, by  which the High Court answered the one question  referred to it adversely to the appellant. On  the facts stated above the question which has arisen  is whether as a matter of practice of this Court, the appellant is  enticed to be heard on merits in the three appeals  when special  leave was neither asked for nor granted in  respect of  the subsequent orders of the High Court relating to  the assessments in question which have now become final  between the  parties  thereto.   In other words,  the  question  is- whether the High Court should be allowed to be by-passed  in the manner sought to be done by the appellant in these three appeals?   The position is quite clear.  With regard to  two of  the  assessment  orders  the High  Court  held  that  no questions  of  law arose at all; with regard  to  the  third assessment order the High Court held that only one  question of law arose and it answered 282 that question against the appellant.  Can the appellant  now ignore these orders of the High Court and ask us to consider on  merits the orders of the Board of Revenue passed on  the two revision applications for the first two periods and  the orders  of the Board in the reference case holding  that  no question  of law arose out of the assessment order  for  the third period?  This is the question, taken as a  preliminary point, which we have to answer in these three appeals.   The question  has to be considered with regard to (a) the  scope and ambit of Art. 136 of the Constitution; (b) the  practice of this Court; and (c) the question must also be  considered in  the  context of the scheme of the Act  under  which  the assessments  were  made, appeals and  revisions  in  respect thereof were heard, and the scope and effect of s. 25 of the Act under which the Board was asked to refer certain alleged questions  of law to the High Court and the High  Court  was asked  to direct the Board to state a case on the  questions of law said to arise out of the assessment orders. It is necessary at this stage to dispose of an initial point taken  on  behalf  of  the appellant,  before  we  go  to  a consideration of the main question.  The point is this.   On behalf  of  the appellant it has been submitted  that  leave having been granted by this Court, the preliminary objection taken   to  the  hearing  of  the  appeals  should  not   be entertained  now and the appeals should be heard on  merits. We  are  unable to accept this as correct.  In  these  cases leave was granted without hearing the respondents, and  full materials in the record were not available nor placed before the  Court when leave was granted.  In Baldota  Brothers  v. Libra Mining Works (1) this Court has pointed out that there is no distinction in the scope of the exercise of the  power under Art. 136 at the stage of application for special leave and at the stage when the appeal is finally disposed of, and it  is  open to the Court to question the propriety  of  the leave granted even-at the time of the hearing of the appeal. This view is in accord with some of the earlier decisions of this  Court to which a reference has been made in  Baldota’8 case (1)  A.I.R 1961 S.C. 100.                             283 (supra).   Therefore,  it  is open to  us  to  consider  now whether  leave  was properly granted in  these  appeals  and whether  the  appellant is entitled to be  heard  on  merits consistently  with  the practice of this  Court  in  similar circumstances. We proceed now to a consideration of the main question.   As a  preface to that discussion it is advisable to refer  here

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to  some of the provisions of the Act in order to bring  out clearly  the  scheme and object of the  Act.   The  charging section is s. 4 which says in effect that every dealer whose gross  turnover exceeds a particular amount in a year  shall be liable to pay tax under the Act on sales taking place  in Bihar.  Section 5 lays down the rate of tax.  The assessment section  is s. 13 which states the various circumstances  in which  the  assessing  authority may  make  the  assessment. Section  24 of the Act provides for an appeal,  revision  or review  of the assessment.  Then come s. 25, the  scheme  of which is analogous to that of s. 66 of the Indian Income-tax Act,  1922.   Under  sub-s.  (1) of s.  25,  the  dealer  or Commissioner who is aggrieved by an order made by the  Board under  sub-s.  (4) of s. 24 may by  application  in  writing require the Board to refer to the High Court any question of law  arising  out  of such an order; if  for  reason  to  be recorded   in  writing  the  Board  refuses  to  make   such reference, the applicant may under subs. (2) of s. 25  apply to  the High Court against such refusal.  If the High  Court is  not  satisfied that such refusal was justified,  it  may require  the Board to state a case and refer it to the  High Court.   When  a  case is referred to  the  High  Court,  it decides  the  question of law raised thereby by  a  judgment containing  the  grounds on which the decision  is  founded. The  Board  then  disposes  of the  case  according  to  the decision of the High Court.  This in short is the scheme  of s.  25.  It is manifest that under this scheme questions  of fact ate dealt with by the assessing authorities, subject to appeal and revision; but on questions of law the decision of the  High Court is the decision according to which the  case has  to be disposed of Section 23 of the Act says that  save as provided in s. 25, no 284 assessment  made  and no order passed under the Act  or  the rules  made  thereunder by the Commissioner  or  any  person appointed  under  s. 3 to assist him shall  be  called  into question  in  any court and save as provided in  s.  24,  no appeal  or  application  for revision or  review  shall  lie against  any such assessment or order.  Clearly enough,  ss. 23,  24 and 25 of the Act cannot override the provisions  of the  Constitution, nor affect the power of this Court  under Art.  136  of the Constitution.’ The decision  of  the  High Court  under s. 25 of the Act is undoubtedly subject to  the power  of  this  Court under Art. 136; so  also  the  deter- mination or order of any of the assessing authorities  which are tribunals within the meaning of Art. 136.  That  Article reads (omitting what is not relevant for our purpose):               "Art.  136.  (1) Notwithstanding  anything  in               this  Chapter, the Supreme Court may,  in  its               discretion, grant special leave to appeal from               any judgment, decree, determination,  sentence               or order in any cause or matter passed or made               by  any court or tribunal in the territory  of               India." The  words of the Article are very general and it is  stated in  express  terms that this Court may, in  its  discretion, grant  special  leave to appeal from any  judgment,  decree, determination,  sentence  or order in any  cause  or  matter passed or made by any court or tribunal in the territory  of India.   The question before us is not whether we  have  the power;  undoubtedly, we have the power, but the question  is whether in the circumstances under present consideration, it is a proper exercise of discretion to allow the appellant to have resort to the power of this Court under Art. 136.  That question  must be decided on the facts of each case,  having

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regard  to  the practice of this Court and  the  limitations which  this  Court itself has laid down with regard  to  the exercise of its discretion under Art. 136. What are these limitations In Pritam Singh v. The State  (1) this Court indicated the nature of these limitations in  the following observations: (1)  [1950] S.C.R. 453.                             285               "On a careful examination of Article 136 along               with  the  preceding Article, it  seems  clear               that  the wide discretionary power with  which               this  Court  is  invested under it  is  to  be               exercised  sparingly and in exceptional  cases               only,  and as far as possible a more  or  less               uniform standard should be adopted in granting               special  leave  in the wide range  of  matters               which  can  come  up  before  it  under   this               Article.   By virtue of this Article,  we  can               grant   special  leave  in  civil  cases,   in               criminal cases, in income-tax cases, in  cases               which  come  up  before  different  kinds   of               tribunals  and  in a variety of  other  cases.               The only uniform standard which in our opinion               can be laid down in the circumstances is  that               the Court should grant special leave to appeal               only    in   those   cases    where    special               circumstances        are       shown        to               exist.....................................               Generally speaking, this Court wilt not  grant               special   leave,  unless  it  is  shown   that               exceptional  and special circumstances  exist,               that substantial and grave injustice has  been               done  and that the case in  question  presents               features  of sufficient gravity to  warrant  a               review of the decision appealed against." Pritam  Singh’s case (1) was a case of criminal appeal,  but the same view was reiterated in Dhakeswari Cotton Mills Ltd. v. Commissioner of Income-tax, West Bengal (2), which was an income-tax case.  It was there observed:               "The   limitations,  whatever  they  be,   are               implicit  in the nature and character  of  the               power  itself.   It being an  exceptional  and               overriding  power,  naturally  it  has  to  be               exercised sparingly and with caution and  only               in   special  and  extraordinary   situations.               Beyond  that it is not possible to fetter  the               exercise  of this power by any set  formula.or               rule." We shall deal with this decision in greater detail a  little later, when considering the question of the practice of this Court.   It  is  enough to state here that  this  Court  has uniformly  held that there must be exceptional  and  special circumstances  to  justify the exercise  of  the  discretion under Art. 136. (1)  [1950] S.C.R. 453. 37 (2) [1955] 1 S.C.R. 941. 286 Are  there any such circumstances in the appeals before  us? The  answer  must  clearly be in the  negative.   Under  the scheme  of the Act which we had adverted to earlier,  it  is not  open  to the appellant to contest now the  findings  of fact  arrived  at  by  the  assessing  authorities.   As  to questions  of  law  the appellant had gone up  to  the  High Court,  which held that in respect of two of the  assessment

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orders  no’  questions of law. arose and in respect  of  the third  assessment order, only one question of law arose  and this question the High Court answered against the appellant. As  we  have pointed out earlier, the decision of  the  High Court  in respect of all the three assessment orders was  no doubt subject to an appeal to this Court if this Court  gave special  leave  under  Art. 136.   The  appellant  did  not, however, move this Court for special leave in respect of any of  the orders passed by the High Court; those  orders  have Dow  become final and binding on the parties thereto.   What the  appellant is seeking to do now is to by-pass  the  High Court by ignoring its orders.  This the appellant cannot  be allowed  to  do.   Far from there  being  any  special  cir- cumstances  in favour of the appellant, there are plenty  of circumstances  against him.  The appellant is really  trying to  go  behind the orders of the High  Court  by  preferring these  appeals  directly  from the orders of  the  Board  of Revenue,  and  in one appeal from the orders  of  the  Board refusing to make a reference to the High Court. The  practice of this Court is also against  the  appellant. The  earliest decision on this point is that  of  Dhakeswari Cotton  Mills Ltd.(1) and learned Counsel for the  appellant has relied on it in support of his argument that this  Court had  in some previous cases interfered with an-order of  the tribunal in exercise of its power under Art. 136 even though the  assessee  had not moved against the order of  the  High Court.   In  Dhakeswari’s case (1) what happened  was  this. The  assessee  having exhausted all his remedies  under  the Income-tax Act, 1922, including that under s. 66(2) for  the issue of a mandamus to the Tribunal, made an (1)  [1955] 1 S.C.R. 941.                             287 application  to  this  Court for  special  leave  to  appeal against  the  order  of the  tribunal;  this  Court  granted special  leave and in the appeal filed in pursuance  thereof quashed  the  order of the Tribunal.  But  the  decision  in Dhakeswari’s  case  (1)  must be read in the  light  of  the special circumstances which existed there.  It was found  by this   Court   that  the  tribunal  had   violated   certain fundamental rules of just  ice in reaching its  conclusions, and that the assessee had not had a fair hearing; therefore, it  was held that it was a fit case for the exercise of  the power under Art. 136.  The decision proceeded really on  the basis  that  the  principles of  natural  justice  had  been violated  and  there was in reality no fair trial.   In  the appeals before us no such or similar ground is alleged so as to attract the exercise of our power under Art. 136. In Moti Ram V.  Commissioner of Income-tax (2) the appellant did  not make any application under s. 66(2) of the  Income- tax  Act, 1922, but obtained special leave of this Court  in respect  of  the  order  of  the  Tribunal  in  the  special circumstance  that his property was attached  and  proceeded against  for the recovery of the tax.  The question  of  the propriety of the grant of special leave was not  considered, but the appeal was dismissed on merits. The  decision  in  Jogta Coal Co. Ltd.  v.  Commissioner  of Income-tax,  West Bengal (3) which is a decision on its  own facts,  has  been open to much debate.  The  question  which fell  for consideration there related to depreciation  under s. 10(2)(vi) of the Indian Income-tax Act, 1922, namely, the amount  on  which the appellant was  entitled  to  calculate deduction  allowance  for  purposes  of  depreciation.   The Income-tax  Officer made an estimate which was  accepted  by the Appellate Assistant Commissioner.  The matter was  taken to  the Appellate Tribunal which made its own estimate.   An

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application  under s. 66(1) was rejected and an  attempt  to move the High Court under s. 66(2) also proved unsuccessful. Then, this Court was moved for special leave to appeal  from the orders of the (1) [1955]1 S.C R. 941.      (2) [1958]34 I.T.R. 646, (3) [1959]36 I.T.R. 521. 288 Tribunal,  and the appeals were brought with  special  leave granted by this Court.  This Court remitted the case to  the Tribunal  and directed the latter to refer two questions  of law  to  the  High Court under s. 66(2).   It  is  a  little difficult to see how on an appeal from the appellate  orders of  the Tribunal, a direction under s. 66(2) could be  made. Perhaps,  this  fact  was not noticed.   In  any  view,  the decision  cannot be taken as settling the practice  of  this Court in favour of the appellant. In  Omar Salay Mohammed Sait v. Commissioner of  Income-tax, Madras(1)  the  Tribunal based its findings  on  suspicions, conjectures  or  surmises  and the principle  laid  down  in Dhakeswari’s case (2) was followed.  The decision in  Sardar Baldev Singh v. Commissioner of Income-tax, Delhi & Ajmer(1) was  also  a decision special to its own facts.   There  the application   to   the  Tribunal  was  barred   by   time-in circumstances   which   were-beyond  the  control   of   the appellant.   The  Tribunal dismissed the application  for  a reference on the ground of limitation and the High Court had no  power  to extend the time.  In these  circumstances  the appellant asked for special leave and condonation of  delay. Special leave was granted by condoning the delay. More  in point is the decision in V. Govindarajulu  Mudaliar v.  The Commissioner of Income-tax, Hyderabad (4) which  was concerned with appeals from the decision of the Tribunal  by special leave, after an application under s. 66(2) had  been dismissed by the High Court.  This Court then observed:               "  We must mention that against the  order  of               the   Tribunal  the  appellant   applied   for               reference to the High Court under s. 66(2)  of               the  Indian  Income-tax Act  and  the  learned               Judges  of  the  High  Court  dismissed   that               application.   No  appeal has  been  preferred               against  that at all.  The present  appeal  is               against  the decision of the Tribunal  itself.               It  is  no  doubt true  that  this  Court  has               decided  in  Dhakeswari Cotton Mills  Ltd.  v.               Commissioner   of  Income-tax,  West   Bengal,               1955(1) S.C.R. 941, that an appeal               (1)   [1959]37 I.T.R. 151.               (3)   [1960] 40 I.T.R. 605.               (2)   [1955] 1 S.C.R. 941.               (4)   A.I.R. 1959 S.C. 248,                                    289               lies  under  Art. 136 of the  Constitution  of               India to this Court against a decision of  the               Appellate Tribunal under the Indian Income-tax               Act.   But  seeing  that  in  this  case   the               appellant  had  moved  the High  Court  and  a               decision  has been pronounced adverse  to  him               and this has become final, obviously it  would               not be open to him to question the correctness               of  the  decision of the Tribunal  on  grounds               which  might  have  been taken  in  an  appeal               against the judgment of the High Court." In  Messrs Chimmonlall Rameshwarlal v. Commissioner  Income- tax  (Central),  Calcutta(1)  the facts  were  these.   Four appeals were filed with special leave granted by this  Court

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under Art. 136 which were directed against the orders of the Appellate   Tribunal  refusing  to  state  a  case   on   an application  made  to it under s. 66(1).   No  appeals  were filed against the orders of the Appellate Tribunal under  s. 33(4),  nor  against the orders of the High Court  under  s. 66(2)a  position which is similar to the one in  the  appeal before  us relating to the assessment for the third  period. In these circumstances this Court observed:               "In the present case the circumstance of  very               great   materiality  and  significance   which               stares  the appellants in the face is that  in               regard   to  this  very  point  there   is   a               considered   judgment   of  the   High   Court               delivered  by it on the applications  made  by               the  appellants to it under section  66(2)  of               the  Act which came to the conclusion that  no               question of law arose out of the order of  the               Tribunal,  which judgment stands,  not  having               been  appealed against in any manner  whatever               by  the appellants.  The result of  our  going               into  these  appeals before us on  the  merits               would be either to confirm the judgment  which               has  been pronounced by the High Court  or  to               differ  from  it.  If we did the  former,  the               appellants would be out of Court; if, however,               perchance  we came to the contrary  conclusion               and accepted the latter view, namely, that the               High  Court  was  wrong in  not  granting  the               applications  of the appellants under  section               66(2) of the Act there would be two               (1)   A.I.R. 1960 S.C. 280,               290               contrary decisions, one by the High Court  and               the other  by us and we would be  in  effect,               though  not by proper procedure to be  adopted               by  the  appellants in  that  behalf,  setting               aside the judgment of the High Court.  This is               an  eventuality  which  we  cannot  view  with               equanimity.  It is contrary to all notions  of               comings  of  Courts and even though we  are  a               Court which could in certain events set  aside               and  overrule the decisions of the High  Court               concerned,   we  cannot  by-pass  the   normal               procedure  which  is to be  adopted  for  this               purpose  and achieve the result indirectly  in               the  manner suggested by the appellants.   We,               therefore,  think  that in  the  circumstances               here it would be inappropriate on our part  to               enter upon an adjudication of these appeals on               merits.   We would, therefore,  dismiss  these               appeals without anything more." We  think  that these observations apply with  equal  force, here. A  careful  examination of the previous  decisions  of  this Court shows that whenever the question was considered,  this Court   said   that   save  in   exceptional   and   special circumstances such as were found in Dhakeswari’s case (1) or Baldev  Singh’s  case (2) it would not  exercise  its  power under  Art. 136 in such a way as to by-pass the  High  Court and  ignore  the  latter’s decision, a  decision  which  has become  final  and  binding  on  the  parties  thereto,   by entertaining appeals directly from the orders of a tribunal. Such exercise of power would be particularly inadvisable  in a  case where the result may be a conflict of  decisions  of two  courts of competent jurisdiction, a conflict  which  is

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not  contemplated by ss. 23, 24 and 25 of the Act.   On  the contrary,  the  object  of  these sections  is  to  avoid  a conflict by making the decision of the assessing authorities final  on questions of fact subject to appeal,  revision  or review as provided for by s. 24 and the decision of the High Court subject to an appeal to this Court, final on questions of  law under s. 25 of the Act.  To ignore the  decision  of the High Court on a question of law would really nullify the statutory provisions of s. 25 of the Act. (1) [1955] 1 S.C.R. 941.     (2) [1960] 40 I.T.R. 605; 291 It remains now to consider one last argument urged on behalf of  the  appellant.  Learned Counsel for the  appellant  has drawn our attention to Art. 133 of the Constitution and  has pointed  out that when the High Court refuses a  certificate under  Art. 133, it is open to this Court to  grant  special leave  to  appeal  (and this Court has  often  granted  such special  leave)  from the main decision of  the  High  Court irrespective of the orders of the High Court refusing such a certificate.   It  is argued that the  same  analogy  should apply, and in spite of the orders of the High Court under s. 25 of the Act, this Court may and should grant special leave to appeal from the orders of the Tribunal.  We do not  think that  the analogy is apposite.  Firstly, in dealing with  an application  under Art. 133 the High Court merely  considers whether a certificate of fitness should be given in  respect of  its  own  decision; in such a case it  does  not  itself decide any question of law such as is contemplated by s.  25 of  the  Act.   Secondly,  there is  no  likelihood  of  any conflict  of  decisions  of the  kind  referred  to  earlier arising  out of an order under Art. 133, when special  leave is  granted  to appeal from the main decision  of  the  High Court.   The  question  of two decisions  by  two  different courts or tribunals does not arise, and none of them is  by- passed by the grant of such special leave.  Moreover’ as  we have  said earlier the question is not one of the  power  of this Court; but the question is what is the proper  exercise of  discretion in granting special leave under Art.  136  of the Constitution. In these appeals we have reached the conclusion, for reasons already stated, that the appellant is not entitled to ask us to exercise our power under Art. 136.  There are no  special circumstances justifying the exercise of such power; on  the contrary  the circumstances are such that it would be  wrong both  on principle and authority to allow the  appellant  to by-pass the High Court by ignoring its orders.  In our view, special  leave was not properly given in these cases and  we would  accordingly dismiss the appeals with  costs,  without going into merits.  There will be one hearing fee. Appeals dismissed. 292