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PETITIONER: THE COMMISSIONER OF INCOME-TAX

       Vs.

RESPONDENT: THE PATIALA CEMENT CO.  LTD.

DATE OF JUDGMENT: 17/05/1957

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. BHAGWATI, NATWARLAL H. DAS, S.K.

CITATION:  1957 AIR  692            1957 SCR 1161

ACT: Income Tax-Patiala State Income-tax Law-Income-tax Officer’s Orders-Appealability-Assessment  years 1948-49 and  1949-50- Applicability  of  Indian Income-tax Act to Part  B  States- Patiala Income-tax Act, 2001 (VIII Of 2001), S. 18(3A)  (7)- Finance  Act,  1950 (XXV Of 1950), s.  13-Indian  Income-tax Act, 1922 (XI Of 1922), S. 2(14A).

HEADNOTE: The  respondent  was a company incorporated  in  the  former Patiala State with its registered office in the territory of Pepsu, a Part B State.  For the assessment years 1948-49 and 1949-50  in respect of the amounts of income-tax and  super- tax  which it failed to deduct from out of the  remuneration paid  to  its managing agents, the Income-tax  Officer  took action under the provisions of s. 18 of the Patiala  Income- tax Act.  The Act did not provide for an appeal against  the orders of the Income-tax Officer under that section and  the question  for determination was whether an appeal lay  under the provisions of the Indian Income-tax Act, 1922, which was extended  to  all Part B States with effect  from  April  1, 1950,  by s. 13 of the Finance Act, 1950, and S.  2(14A)  of the Indian Income-tax Act, 1922: Held, that the result of the extension of the Indian Income- tax  Act,  1922,  to Part B States was  that  that  Act  was applicable  to the assessment years 1950-51  and  subsequent years and that for the assessment years 1948-49 and  1949-50 the   law  applicable  was  the  Patiala   Income-tax   Act. Accordingly,  an appeal against the order of the  Income-tax Officer in question was not competent. The  Union of India v. Madan Gopal Kabra, (1954) S.C.R.  541 and  D.  R.  Madhavakyishnaiah v. The  Income  Tax  Officer, (1954) S.C.R. 537, followed.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 118 of 1955. Appeal  from the judgment and order dated May 26,  1954,  of the P.E.P.S.U. High Court in Misc.  Case No. 31 of 1953. G. N. Joshi and R. H. Dhebar, for the appellant.

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The respondent did not appear. 1957.  May 17.  The Judgment of the Court was delivered by 149 1162 KAPUR  J.-This is an appeal under certificate of  the  Pepsu High  Court  and the question for decision  relates  to  the applicability  of  the Indian Incometax Act,  1922,  to  the erstwhile Pepsu area in the years of assessment 1948-49  and 1949-50. The  assessee  company  (the  respondent  before  us),   was incorporated  in  the Patiala State and had  its  registered office  at  Surajpur in Pepsu.  For the year  of  assessment 1948-49  the  company  failed  to deduct  from  out  of  the remuneration  paid  to its managing agents,  who  were  non- residents, the income-tax and the supertax which, it,  under the  law, was required to do.  It also paid to its  auditors auditing  fees  and  from out of this sum also  it  did  not deduct the income-tax and super-tax under the provisions  of the Patiala Incometax Act.  The two sums in dispute were Rs. 59,787-1-0 and Rs. 581, 40 respectively.  For the assessment year  1949-50 also the assessee company failed to  make  the deduction from the remuneration paid to its managing  agents and the income-tax deductible was Rs. 52,484-14-0 and super- tax  Rs.  21,611-6-0.  The Income-tax  Officer  took  action against  the assessee company under ss. 18(3A) and 18(7)  of the  Patiala  Income-tax  Act and  consequently  issued  two demand  notices  for the amounts above  mentioned.   Against this  order of the Income-tax Officer the  assessee  company took  an appeal to the Appellate Assistant Commissioner  who reduced the amount demanded but did not decide the  question whether   the  assessee  company  was  bound  to  make   the deductions  or not.  The assessee company then  appealed  to the Income-tax Appellate Tribunal and it held that under  s. 18(7) of the Patiala Incometax Act no order was required  to be  passed by the Income-tax Officer and that no appeal  lay to  the Appellate Assistant Commissioner against  the  order under  s. 18(3A) as there was no provision for it under  the Patiala   Income-tax  Act.   Before  the  Tribunal  it   was contended that at the time when the appeals were decided  by the Appellate Assistant Commissioner, the Patiala Income-tax Act had ceased to be in force and therefore the appeals were sustainable  under the provisions of the  Indian  Income-tax Act which had been 1163 extended to all Part B States by s. 13 of the Indian Finance Act  of 1950 (XXV of 1950) but this contention was  repelled and the Tribunal held that the only remedy for the  assessee company  was to take a revision under s. 33 of  the  Patiala Income-tax  Act  to the Commissioner.  The Tribunal  at  the request of the assessee company referred the following three questions for the opinion of the High Court: (1)Whether  the  appeals  before  the  Appellate   Assistant Commissioner  fell  to  be decided in  accordance  with  the provisions  of  the  Patiala Income-tax Act  or  the  Indian Income-tax Act ? (2)Whether the appeals before the Appellate Tribunal fell to be decided in accordance with the provisions of the  Patiala Income-tax Act or the Indian ]Income-tax Act ? (3)Whether, on the assumption that the assessee company  was not  bound to deduct tax, its appeals before  the  Appellate Assistant Commissioner were competent in law ? The High Court decided that in regard to the assessment year 1948-49,  the law applicable was the Patiala Income-tax  Act and  therefore  no  appeal Jay to  the  Appellate  Assistant Commissioner  but in regard to the assessment  year  1949-50

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the Indian law became applicable and therefore the order  of the  Income-tax  Officer was appealable.  The  Revenue  have come up in appeal under a certificate of the High Court  and the  submission is that to the assessment year 1949-50  also the  Patiala  Income-tax  Act applied  and  not  the  Indian Income-tax  Act  and therefore the order  of  the  Incometax Officer was not appealable. In  order to resolve the controversy, reference may be  made to  certain provisions of the Indian Income-tax  Act,  1922, and the Finance Act of 1950.  Section 13 of the Finance  Act provides: S.   13 " If immediately before the Ist day of April,  1950, there  is in force in any Part B State other than Jammu  and Kashmir or in Manipura, Tripura or Vindya Pradesh or in  the merged  territory of Cooch Behar any law relating to  income tax  or  super tax or tax on profits of business,  that  law shall cease to have effect except 1164 for  the purpose of the levy, assessment and  collection  of income-tax  and  super  tax in respect  of  any  period  not included in the previous year for the purpose of  assessment under  the Indian Income-tax Act, 1922, for the year  ending on the 31st day of March, 1951, or. for any subsequent  year or,  as the case maybe, the levy, assessment and  collection of tax on profits of business for any chargeable  accounting -period ending on or before the 31st day of March, 1949 ; " Section 13 of the Finance Act of 1950 shows that the  Indian Income-tax Act became applicable to the assessees  residing, in any Part B State as from the assessment years 1950-51  or the accounting year 1949-50. The  provisions of s. 2(14A) of the Indian  Income-tax  Act, 1922,  show that the Act became applicable to Part B  States as  from  April 1, 1950.  The relevant  provisions  of  this section are: S.2(14A)      "     taxable     territories     "      means (d)  as  respects  any period after the 31st day  of  March, 1950, and before the 13th day of April, 1950, the  territory of  India excluding the State of Jammu and Kashmir  and  the Patiala and East Punjab States Union. Provided that the " taxable territories " shall be deemed to include- (b)  the whole of the territory of India excluding the State of Jammu and Kashmir- (i)....................................... (ii) as  respects  any period after the 31st day  of  March, 1950,for any of the purposes of this Act and (iii)     as  respects any period included in  the  previous year  for the purpose of making any assessment of  the  year ending on the 31st day of March, 1951, or for any subsequent year; It  will  be  noticed that the language used  in  s.  2(14A) proviso (b) (iii) is the same as the language under s. 13 of the Finance Act of 1950.  The effect of the Finance.  Act of 1950 is that as regards assessment for the year ending March 31, 1951, the Indian Income-tax Act 1165 would  be applicable-accounting year being the  year  ending March 31, 1950, and for any assessment year previous to that the Patiala Income-tax Act would be applicable.  The  effect of  s.  2(14A)  proviso (b) (ii) &  (iii)  is  that  taxable territories would comprise the whole of India excluding  the State  of Jammu and Kashmir as respects any period  included in the previous year for the purpose of making an assessment for the year ending March 31, 1951, i.e., for the assessment year 1950-51 or the accounting year 1949-50.

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The application of the Indian Income-tax Act as a result  of s. 13 of the Finance Act of 1950 was decided in The Union of India  V.  Madan  Gopal  Kabra (1) which  was  a  case  from Rajasthan where there was no income-tax in the previous year but  the  assessee was sought to be assessed  for  the  year 1950-51 under the Indian Income-tax Act.  It was held  ’that under sub-cl. (1) of cl. (b) of the proviso to s. 2(14A) the whole of the territory of India including Rajasthan would be deemed " taxable territory " for the purpose of s. 4A of the Indian Income-tax Act " as respects any period " meaning any period before or after March-31, 1950, and the assessee  was therefore’  liable to income-tax.  Patanjali  Sastri,  C.J., who delivered the judgment of the court said: " A close reading of that provision will show that it  saves the operation of the State law only in respect of 1948-49 or - any earlier period which is the period not included in the previous  year (1949-50) for the purposes of assessment  for the year 1950-51.  In other words, there remained no  State- law  of income-tax in operation, in any Part B State in  the year  1949-50." This passage from the judgment supports  the contention  of the appellant that as regards income  of  the accounting year 1949-50 or the year of assessment 1950-51 no State  law of income-tax was operative in any Part B  State. It appears that the error which has crept in the judgment of the  High Court has been due to misreading the year  1949-50 as  being  assessment  year and  not  accounting  year.   In another  case  D. B. Madhavakri shnaiah v.  The  Income  Tax Officer (1) (1) [1954] S.C.R. 541, 552. (2) [1954] S.C.R. 537. 150 1166 s.   13   of   the  Finance  Act  of  1950   was   similarly interpreted.  Therefore both for the assessment years  1948- 49  and  1949-50  the law applicable would  be  the  Patiala Income-tax  law  and  not  the  Indian  Income-tax  Act  and consequently no appeal against the order of the’  Income-tax Officer was competent. The  answers to the questions would be as  follows:Questions Nos. 1 & 2: The Patiala Income-tax Act was in operation  and no appeals lay.  Question No. 3 In the negative. The  appeal is, therefore, allowed but as the  respondent  I company  has  not appeared and contested the  appeal,  there will be no order as to costs, in this court.                                Appeal allowed.                           APPENDIX Reference to the memory of Shri N. Chandrasekhara Aiyar, Ex- Judge  of  the  Supreme Court of India, by  the  Judges  and members of the Bar of the Supreme Court of India,  assembled at a meeting on April 1, 1957. Shri  S.  R.  DAS, Chief  Justice  of  India.-Mr.  Solicitor General, it is with a heavy heart that I mention to you  and the  members  of  the  Bar  the  passing  away  of  Nagapudi Chandrasekhara  Aiyar, who was an esteemed colleague  and  a very dear friend.  The melancholy news reached me  yesterday evening. Nagapudi Chandrasekhara Aiyar was born on January 25,  1888. He was educated at Conjeevaram, Tirupati and Madras and  was a  student  of  the Christian College  and  the  Madras  Law College.   During his college days he was a keen  sportsman, interested  chiefly in Cricket.  This interest in  sport  he kept  up  even after he became a District  Judge.   After  a brilliant academic career, he was enrolled as a vakil of the Madras High Court in 1910.  He worked in the chambers of Dr. C. P. Ramaswami Aiyar whom he used to refer to as his master and  for  whom  he had very high regard.  He  picked  up  an

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extensive  practice on the Original Side of the Madras  High Court.   In July 1927 he became the City Civil Judge and  in December of the same year he was appointed as a District and Sessions  Judge.   He was raised to  the  Madras-High  Court Bench in July 1941 and worked there as a Judge until January 25,  1948.   The  State utilised his  mature  experience  in different spheres.  He was appointed as a member of the  All India  Industrial  Tribunal (Bank Disputes).  He  was  later appointed as a member of the Indo-Pakistan Boundary Disputes Tribunal.   Shortly thereafter he was appointed a  Judge  of this  Court  and  was  sworn  in  on  September  23,   1950. Immediately after his retirement from this Court on  January 24, 1953, he was chosen as the Chairman of the  Delimitation Commission.   Towards the end of his term in this  Court  he fell ill very 151 1168 seriously.   He  responded  to  medical  treatment  and  the devoted  nursing of his good wife brought him  round.   That illness, however, had undermined his otherwise robust health and  had  left  him weak.  But  undaunted  by  his  physical ailments and in a true spirit of service he moved about from place to place all over India and successfully completed the work  of  the Commission.  Just at that time  Chief  Justice Mukherjea fell ill and on his advice Nagapudi Chandrasekhara Aiyar was called upon by the President to assist this  Court as an ad hoe Judge.  This burden he cheerfully accepted  and efficiently discharged to the satisfaction of all concerned. Even  after this he had to undertake, as  Chairman,  further work of delimitation consequent upon the re-organisation  of the States. Nagapudi  Chandrasekhara Aiyar was well grounded  in  legal- principles.   To his legal acumen he added his deep  insight into human nature and psychology and a robust common  sense. On  all intricate legal problems presented before the  Court he   brought  to  bear  a  mental  freshness,  which   often contributed  to their solution.  The judgments  written  and delivered  by him, which will be found reported in  the  Law Reports, will bear testimony to his legal learning and human sympathies.  In his behaviour towards the members of the Bar he was always kind and considerate.  Towards his  colleagues he was systematically courteous. Nagapudi  Chandrasekhara  Aiyar’s interest in life  was  not confined to law or within the cloistered compound of a court of law.  While he was a sound lawyer and a learned Judge, he was  also a man of great erudition in Sanskrit  and  English literature.   He  was, on the one hand, the  editor  of  the latest  edition of Mayne’s Hindu Law, he was, on  the  other hand,  the author of " Anjaneya " which he had dedicated  to his  master and of Valmiki Ramayana.  For those of  us,  who came into close contact with him, his ready quotations  from our  ancient scriptures and literary works of our  classical poets  were  indeed  a  matter  of  joy.   The   Convocation addresses delivered by him were thoughtful and incisive, 1169 Nagapudi  Chandrasekhara Aiyar above all was a warm  hearted man, a man of genial temperament and a very friendly person. His  bubbling  cheerfulness and refreshing  sense  of  humor inevitably dispelled dullness and he had the kindly knack of putting    everybody   at   ease.    He   was    a    lively conversationalist, full of sparkling humor, and cheerful bon homie.   Those of us, who had the privilege of coming  close to him, will always miss the glow and the warmth of his kind friendliness. The  passing away of an erstwhile esteemed colleague  and  a

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friend  certainly brings to one’s mind a sense of  loss  and sadness.   We  remember with  gratitude  the  consideration, courtesy and kindness that we always received from him.   We request you to convey to his companion in life our sense  of admiration for the constant care and devoted attention which she daily bestowed on him and our heartfelt sympathy for her in her dark and dismal day of sorrow.  We pray with her  for the peace of his soul. Shri  C. K. DAPHTARY, Solicitor- General of India.-My  Lord, the news of the passing away of Shri Chandra. sekhara  Aiyar has  come to most of us as an unexpected shock.   After  his miraculous  and seemingly complete recovery from  illness  a few years ago, it was hoped that he would be spared for many years to come, to continue his distinguished services to the State.   When  he came to the Supreme Court  Bench,  he  had behind  him a record of work in the High Court and in  other fields  of public life and had won that admiration which  is the  just  due of one who reaches the highest  rung  of  the judicial  hierarchy.  When he left he had won  also  respect and  confidence  by his forthright and robust  dealing  with problems uncluttered by oversubtlety.  He won too, affection by his hearty good-fellowship and kindliness which  embraced all  alike, senior, junior and beginner.  By his death,  the law  has lost a notable personality and the state a  citizen of outstanding quality, who laboured in its service, and had death  not snatched him away would have continued to  render valuable service. 1170 One  behalf of the Bar and myself, I associate  myself  with the   expression   of  regret  and  the  tribute   to   Shri Chandrasekhara Aiyar’s memory which your Lordship the  Chief Justice has so feelingly expressed. Reference  to  the memory of late Justice’ Shri  P.  Govinda Menon, Judge of the Supreme Court of India by the Judges and members of the Bar of the Supreme Court of India,  assembled at a meeting on October 17, 1957. Shri  S.  R.  DAS, Chief Justice  of  India.-Mr.  Additional Solicitor  General  and Mr. Vice-President  of  the  Supreme Court  Bar  Association, we have met here  again  under  the shadow of death.  All of you must have read in the papers of the  sudden demise of Mr. Justice P. Govinda Menon.  When  I was  with him yesterday afternoon, I never thought that  his end was so near. P.   Govinda Menon was born in September 1896.  He  received his  early  education  in Ganpat High School,  then  in  the Zamorin’s  College,  Kozhikode, and then in  the  Presidency College  and the Law College in Madras.  He was enrolled  as an Advocate in September 1920 and joined the Madras Bar  and practised  before the High Court.  In December 1940  he  was appointed Crown Prosecutor.  He proceeded to Japan in  April 1946  as the Indian representative before the  International Military  Tribunal for the Far East at Tokyo.  He  acted  as the  Chief Indian Prosecutor from April to  September  1946. He’  was elevated to the Bench of the Madras High  Court  in 1947  and  was  there just over nine  years  before  he  was elevated to this Court in August 1956. As  a practitioner at the Bar, as Crown Prosecutor and as  a Judge  P.  Govinda Menon acquitted himself  with  remarkable success.   His suavity of manners and his sweet and  amiable disposition  endeared him to the members of the Bar  and  to the Judges.  He had a wide circle of friends both at the Bar and outside the Bar.  As a Judge of the Madras High Court he presided over almost all the divisions of the Court and  had to deal with various typos of cases, civil and 1171

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criminal.  His work as Crown Prosecutor brought him valuable experience  and insight into human nature and helped him  to acquire  a firm grasp of the principles of criminal law  and jurisprudence.  While upholding the dignity and the  majesty of  the  law, he had the capacity and courage  of  tempering justice  with mercy.  He did not permit mere  technicalities or  senseless formalities to stand in the way of  dispensing justice.  He also heard and disposed of heavy civil  appeals and revisions.  He had a deep knowledge of Hindu Law and  in particular, the Marumakattayam and Aliyasantana branches  of it.   Indeed, the chapters on those subjects in  the  latest edition  of Mayne’s Hindu Law were written by him.   He  was generally  helpful  to  the  members  of  the  Bar  and   in particular,  to the junior section of it, who  always  would appear before him and make their submissions without fear or nervousness.   He  was  a man of studious  habits  and  took interest in literary and cultural subjects. When  he came to this Court, he brought with him his  mature judicial  experience and learning and his sense  of  justice and  fairplay.   My colleagues and I, who sat  with  him  in Court, had his assistance and advice in dealing with matters coming  up  for  decision  before  us.   ’He  was  uniformly courteous  lo  the  members of the Bar as  well  as  to  his colleagues  on  the Bench.  He was a  conscientious  worker, which  is  exemplified  by the fact that  although  he  felt definitely  out of sorts for about a week before his  death, he  did not take rest lest the work in Court should be  dis- located  and  his  colleagues and the  members  of  the  Bar engaged  in the part-heard cases should  be  inconvenienced. Although  I assured him that all arrangements had been  made for  carrying on the Court work, he kept on worrying for  he did not feel at ease in his mind.  It was certainly a strain which, I am afraid, told upon his health.  My colleagues and 1,  therefore, mourn the passing away of a sound  lawyer,  a good  Judge, a loyal friend and a conscientious  worker’  We shall  be grateful if you will convey through his  son,  who fortunately was at his bedside at the time of his 1172 death,  our  sincerest  condolences to the  members  of  the bereaved family. Shri H. N. SANYAL, Additional Solicitor-General of India.-My Lords,  the Indian Bar most respectfully  associates  itself with  what  has  fallen from Your  Lordship.   It  expresses profound  sympathy  for  the members of the  family  of  Mr. Justice Menon.  It expresses its deepest sorrow and grief at the  sudden death of Mr. Justice Menon.  In 1920, he  became an Advocate of the Bar at Madras and within a short time  he became  one  of  its  leading  members.   In  1940,  he  was appointed   Crown  Prosecutor  in  Madras.   His   name   is remembered and will always be remembered that he acted  with utmost  fairness in conducting cases.  In 1946, he  went  to Tokyo  on behalf of India.  There he discharged  his  duties with great ability.  He became a Judge in 1947 and within  a short time he made himself very popular and won the  respect and  admiration of the profession.  Thereafter he came  here as a Judge of the Supreme Court.  He had been here only  for a short time but in this short time he had made a tremendous impression on the members of the Indian Bar by his unfailing courtesy  and his keen desire of doing justice.   My  Lords, Mr. Justice Menon was equipped with all the qualities  which are essential for the discharge of the great judicial duties of  the  highest  Tribunal in India.  In  these  days,  when criticisms  are so often made I feel it is my duty to  point out  that  here was a Judge who died in  harness  and  never spared himself in spite of illness for one day and up to the

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last  moment  when it was physically impossible for  him  to discharge  the heavy duties of his office, he  attended  the Court  and gave his very best for the sacred cause, that  is to  say,  the administration of justice.  On behalf  of  the Indian Bar, I am offering our condolence and heart-felt sym- pathy  to the members of his family, to his friends  and  to everyone near and dear to him. Shri  N.  C. CHATTERJEE, Vice-President, Supreme  Court  Bar Association.-My  Lords,  on  behalf of the  members  of  the Supreme  Court Bar Association, it is my duty to  voice  the sentiments and feelings of the 1173 members  of the Supreme Court Bar on this  solemn  occasion. The  unexpected and sudden demise of a great and good  Judge is a great loss to this Court.  It’ is also a great loss  to the State and to the Nation.  The Country has been  deprived by the cruel hand of death of the services of an eminent and upright  Judge, who maintained a very high reputation  as  a Judge of one of the most important High Courts of India  and also a Judge of this august Tribunal. As  members  of  the  legal  profession  we  look  upon   an independent Judiciary as a symbol of sovereignty.  If  there is  one  bulwark  that guards the  freedom  of  the  average citizen,  it is the Courts of Justice.  We are pledged to  a strict adherence of the Rule of Law and in these days,  when the  work of the Judiciary is not properly  appreciated,  it gives  us some comfort to remember that there are  men  like Mr. Justice Govinda Menon in India who sacrificed his health and  life and fell a victim to the sacred cause of  Law  and Justice. Those of us who had the privilege of enjoying his friendship should remember with gratitude that he was much greater as a man.   Unostentatious,  gentle and kind hearted he  won  the affection of all who came into contact with him.  I am happy to   bear   testimony   to  his   kindness,   sympathy   and consideration  for myself and for many of my  colleagues  of the Bar. A  few  years back when I had the privilege  of  associating myself  with  an important Bar function in  South  India,  I discovered  that Mr. Justice Menon’s courtesy, sweet  temper and amiable disposition had endeared himself not only to his colleagues on the Bench but also to the members of the  Bar. I am happy to say that he maintained the same reputation  as a Judge. of this Court. The  Law  Reports of Madras bear eloquent testimony  to  his erudition,  his  clear mind and his keen sense  of  justice. Those  of us, who had the privilege to appear in his  Court, would  bear  testimony to his grasp of  principles  and  the quiet  and courteous attention he has bestowed on the  cases argued before him.  His 1174 judgments  were  not mere collections of precedents  but  he dealt  with  principles  with clarity  and  precision.   The highest  tribute that I would like to pay to his memory  to- day  is  that the juniormost member of the  Bar  never  felt uneasy for a single moment before him. On  behalf  of the Supreme Court Bar we  offer  our  sincere condolences to the members of the bereaved family.  We mourn his death and we pay our homage and tribute of  appreciation and  affection  to the memory of this great Judge  and  this great gentleman.        May his soul rest in peace.