1972 (12) TMI 35 - HC - Income Tax

Summary

Issues:
1. Maintainability of a pauper petition in respect of an application under section 256(2) of the Income-tax Act, 1961.

Detailed Analysis:
The petition was filed in forma pauperis seeking a direction to the Income-tax Tribunal to draw up a statement of the case under section 256(2) of the Income-tax Act. The respondent opposed the petition, arguing that the Code of Civil Procedure does not apply to such proceedings, hence Order 33 of the Code does not apply for filing in forma pauperis. The respondent contended that no provision in the Income-tax Act makes the Code of Civil Procedure applicable to applications under section 256(2), thus a pauper petition is not maintainable.

The respondent cited judgments from various High Courts where it was held that the provisions of the Code of Civil Procedure were not applicable to references under the Indian Income-tax Act, 1922, and hence, the references did not abate even if the applicant died during the pendency of the reference. The judgments emphasized that Order 22 of the Civil Procedure Code was not made applicable to such references, and the provisions of section 141 of the Code were not considered in those cases.

The court analyzed the applicability of section 141 of the Civil Procedure Code, which provides that the procedure in the Code for suits shall apply as far as possible in all proceedings in any civil court. It was held that an application under section 256(2) is a proceeding in a civil court and not merely a continuation of proceedings before the income-tax authorities. Therefore, section 141 would apply, and the provisions of Order 33 of the Civil Procedure Code would be applicable to such applications.

The court also referred to judgments from the Bombay and Madras High Courts where the provisions of Order 33 of the Civil Procedure Code were made applicable to probate and administration proceedings under the Indian Succession Act by virtue of section 141. It was concluded that by virtue of section 141, the provisions of Order 33 of the Civil Procedure Code are equally applicable to applications under section 256(2) of the Income-tax Act, and a pauper petition in this case is maintainable.

The court directed the matter to be investigated to determine if the petitioner is indeed a pauper, and the costs of the reference were to be considered as costs in the pauper petition.