COMMISSIONER OF INCOME TAX, BHUBANESHWAR AND ANR. versus PARMESHWARI DEVI SULTANIA AND ORS.

Citation: [1998] 2 S.C.R. 253 · Decided: 06-03-1998 · Supreme Court of India · Bench: SUJATA V. MANOHAR · Disposal: Appeal(s) allowed

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Judgment (excerpt)

COMMISSIONER OF INCOME TAX, BHUBANESHWAR AND ANR. A 
v. 
_4 
PARMESHWARI DEVI SULTANIA AND ORS. 
MARCH 6, 1998 
[MRS. SUJATA V. MANOHAR AND D.P. WADHWA, JJ.] 
B 
. .... 
Income Tax Act, 1961: Sections 293,132 (B), 132 (4),(5),(7) and (11)-
Bar of civil suit to set aside or modify assessment order- Search and 
seizure -Certain assets including gold ornaments seized and retained by c 
Income Tax Department--Partition suit by a sister of assessee claiming her 
share in the seized gold ornaments-Maintainability of-Held, not 
maintainable as the claim in the suit would effect the order passed under 
section 132(5) of the Income Tax Act-Claimant could have instead resorted 
• 
to the remedy provided under the Act by filing objection under section 
132(11)-Civil Procedure Code, 1908-Section 9. 
D 
Words and Phrases : 
'Any person '-Meaning and scope of-Income Tax Act, 1961 : Section 
132(11). 
Income-Tax Officer conducted search and seizure under section 132 E 
of the Income Tax Act, 1961 at a residential and business premises of 'B'. 
Various assets including gold ornaments were seized in the raid. On 
interrogation 'B' gave a statement that the gold ornaments belonged to 
deceased 'M' first wife of his father, who had bequeathed them for her only 
)o._ 
daughter, Respondent No. 1 and other children of his father from his second F 
wife. The said gold ornaments were in the custody of his father and on his 
death it came into his custody. The Income Tax Officer disbelieving the 
version of 'B' passed an order under section 132(5) of the Act and directed 
that all the assets seized including gold ornaments be retained by the 
department. Respondent No. 1 filed a petition before the Income Tax Officer G 
for return of the ornaments, which was rejected. Therefore, she filed a 
partition suit claiming 5/14th of her share in the gold ornaments which were 
. '·--"., 
seized. Revenue objected to the maintainability of the suit being clearly 
barred by section 293 of the Act. However, the Subordinate Court rejected 
the objection of the ReYenue holding that section 293 of the Act could not 
be a blanket bar for all types of civil suits and as there was no remedy in H 
253 
254 
SUPREME COURT REPORTS 
[1998) 2 S.C.R. 
A the Act for redressal of the grievance of respondent No. 1, the relief claimed 
in the suit could be granted to her in the Act. On revision, High Court upheld 
):... _ 
the order of the Subordinate Court on the ground that section 132 (5) of 
Income Tax Act did not give finality to order passed under the Act. Aggrieved, 
Revenue has filed the present appeal. 
B 
Allowing the appeal, this Court 
HELD: 1.1. Both the High Court and Subordinate Court were not 
~ ~ 
.iustified in holding that the suit was not barred under section 293 of the 
Income Tax Act, 1961. (270-G) 
1.2 The High Court failed to consider the effect of the decree if 
C passed in the suit on the order under Section 132(5) of the Act or other 
proceedings under Section 132B of the Act. When Section 293 originally 
stood, it pnwided that "no suit shall be brought in any civil court to set aside 
or modify any assessment or order made under this Act". The word 
"assessment" was omitted and the words "proceeding taken" were inserted 
D in its place. The scope of Section 293 of the Act has been widened now even 
to include any proceeding under the Act and it is not confined merely to set 
aside or modify any order. Section 293 is specific and docs not admit filing 
of suit which has the effect of even indirectly setting aside modifying of any 
proceeding taken under the Act or order made thereunder. (264-D, 270-C) 
Raleigh Investment Co. Ltd. v. Governor-General in Council, (1947) 15 
E IR 332 (PC); Kamala Mills Ltd. v. State of Bombay, (1965) 56 TR 643 and 
Dulhabhai etc. v. State of Madhya Pradesh &Am:, (1968) 3 SCR 662 =AIR 
(1969) SC 78, relied on. 
F 
Ranganmal & Ors. v. Union of India & Ors., (1963) 48 ITR 598 Mad. 
approved. 
State of Bombay (Now Gujarat) v. Jagmohanda & Am:, (1966) 60 ITR 
206, distinguished. 
1.3. The direct effect of the decree in the suit would be that the gold 
ornaments, subject matter of the suit, would be taken out of the order of the 
Income Tax Officer under Section 132 (5) of the Act and would not be 
G available to be applied in proceedings under Section 132-B of the Act. It is 
immaterial if the proceeding under Section 132 gives no finality to the order 
passed under section 132(5) or 132(11) of the Act. It is not the c

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