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TMI Blog1962 (5) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... efore a Bench of this court which on the 24th of March, 1959, allowed the same and directed the Tribunal to submit a further statement of the case and to refer the following additional question of law to this court for its opinion : Whether there was any material for the finding that the house alleged to have been gifted by the assessee to his wife was still the property belonging to him so that the income from that property was liable to be assessed as the income of the assessee ? The Tribunal in deference to the order of this court has now submitted a further statement of the case and has referred the question of law mentioned above to this court. We have, therefore, before us two questions of law to answer. Before we come to state the facts as given in the two statements of the case, we consider it proper to dispose of a preliminary objection which has been raised by Mr. Gopal Behari, the learned counsel for the income-tax department before us. Placing reliance upon Kamlapat Motilal v. Commissioner of Income-tax [1962] 45 ITR 266 (SC), it was contended by the learned counsel that this court had, in the circumstances of the case, no jurisdiction to have exercised power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red. The proposition that an order without jurisdiction is a nullity is undisputable. But the question that arises for consideration is whether in the present case it can be said that the order passed by this court on the 24th of March, 1959, was an order without jurisdiction. It is only in cases of patent want of jurisdiction that the orders can be deemed to be a nullity. If the order was passed under section 66(2) of the Act, it cannot be said that it was passed without jurisdiction; If the learned counsel for the income-tax department did not raise a plea of limitation, he has himself to thank. Even if the plea of limitation had been raised and repelled, the order of this court dated the 24th of March, 1959, would not be without jurisdiction. Assuming that there was no application under section 5 of the Limitation Act, which applies to applications under section 66(2) of the Act, and assuming further that this court ignored the question of limitation in its order dated the 24th of March, 1959, the order cannot be held to be a nullity. At best, it would be an order passed with jurisdiction but passed erroneously. It is trite that orders passed with jurisdiction but erroneously ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Junglee Koiri or his successors free from all encumbrances. One of the clauses in the agreement was to the effect that if a sum of more than ₹ 1,000 was required to construct the shops, it would be provided by the assessee and for this additional payment the period of the enjoyment of the shops by the assessee would be extended in terms of an agreement to be made between the parties. It is found in the statement of the case that the assessee spent a larger amount than ₹ 1,000 with the result that another agreement was entered into between the parties on the 8th of January, 1948, by which the period for which the assessee was to remain in possession was extended to another ten years, i.e., in all twenty years. Another agreement dated the 19th of June, 1947, was entered into by the five sons of the assessee and the mutawallis of a mosque known as Garhewali Masjid. This agreement was also similar to the two agreements mentioned above. By virtue of this agreement the mutawallis of the mosque were to construct three shops on a piece of land belonging to the mosque for which a sum of ₹ 8,000 was to be provided by the sons of the assessee. It was stipulated that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Assistant Commissioner were pressed. Those submissions did not find favour with the Tribunal who dismissed the appeals. Thereafter, an application under section 66(1) of the Act was made before the Tribunal, which on 13th December, 1957, submitted a statement of the case and referred one question of law already mentioned above, but rejected the application with regard to the second question of law, which it later on referred to this court under the directions of this court dated the 24th of March, 1959. We will first answer question No. 1. We have carefully-perused the agreements dated the 2nd of January, 1947, and the 8th of January, 1948, which relate to the shops standing on the land belonging to Junglee Koiri. These documents have been made annexures to the statement of the case submitted by the Tribunal. In the agreement dated the 2nd January, 1947, it is stated by Junglee as follows : I, the first party, have mortgaged the aforesaid compound for consideration of ₹ 1,100 in favour of Mohd. Ayub and others, r/o Town Mau Nath Bhanjan by a deed dated and registered on December 21, 1943. The total dues of which up to this day inclusive of the principal sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansaction that the parties entered into were in the nature of a self-liquidating or a self-effacing mortgage. In other words, there was to be no annual return on the capital but the capital itself was to be appropriated within a period of ten years by use on the part of this assessee. The agreement dated the 8th of January, 1948, is also similar in terms. We have carefully examined the agreement dated the 19th of June, 1947, executed by the five sons of the assessee and the mutwallis of the mosque. The relevant portions of that agreement read as follows : Whereas the barren land bounded as below situated in village Sarahu, pergana Mau Nath Bhanjan, district Azamgarh, is dedicated to the mosque aforesaid, we, the promisors, the mutwallian of the aforesaid mosque, since the land is barren, it is of no use to the aforesaid mosque. We, mutwallian, are of the opinion that if on the barren land bounded as below shops be constructed, it will amply provide for the repair of the aforesaid mosque, the pay of the Mawazzin and Imam for the light. Therefore, we, mutwallian, having received the sum of ₹ 8,000 before the Sub-Registrar from M/s. Azimullah, Salimullah, Shafiullah, Salamul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration, such a transaction could not be excepted from the scope of section 16 of the Act. We are unable to agree with the Tribunal on this point. It is a mistake to say that there was no consideration for the alleged transfer of the house by the assessee to his wife. The assessee had to meet the liability of the dower debt which was ₹ 3,000 and the house was transferred in lieu of that debt. Consequently, it cannot be said that the , transaction was without consideration. However, one of the circumstances relied upon by the Tribunal against the assessee is that in the municipal records the name of, the assessee and not that of his wife stands against the house in dispute. To the same effect is the finding of the Appellate Assistant Commissioner and, admittedly, no ground was taken in the memorandum of appeal preferred before the Tribunal that the Appellate Assistant Commissioner had wrongly held, that the houses stood in the name of the assessee and not his wife in.the municipal records It is true that the assessee in his application under section 35 of the Act stated that Mau Nath Bhanjan was not a municipality during the relevant period. That application, however, was made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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