Wealth tax---

---- Bar of suits in Civil Court---Scope of S.43---Letter that Valuation Officer would be visiting property in question on 9-1-1979---Suit for declaration that property had been transferred to trust on 2-11-1956---No evidence that property had been transferred to trust on 30-10-1956---Letter from WTO amounted to initiation of proceedings under Wealth Tax Act---Adequate remedies were available under Wealth Tax Act---Civil Court had no jurisdiction to try suit---Indian Wealth Tax Act, 1957, S.43.

Under the provisions of the Wealth Tax Act, 1957, a suit can be filed in the Civil Court for the purpose of getting the relief in respect of grievances which are not covered by the provisions of section 43. No suit can be brought in the Civil Court for setting aside or modifying any proceedings taken or order made under the Wealth Tax Act and no prosecution, suit or other legal proceeding shall lie against the Government or any officer of the Government for anything in good faith done or intended to be done under the Wealth Tax Act. The structure of the Wealth Tax Act indicates that it is a self-contained code and all necessary remedies have been provided for an aggrieved person to get his grievance redressed by filing an appeal before the competent authority provided by the Act.

Section 2, clause (c), defines "assessee" as a person by whom wealth tax or any other sum of money is payable under this Act. Sub-clause (i) of clause (c) defines "assessee" as every person in respect of whom any proceeding under this Act has been taken for the determination of wealth tax payable by him or by any other person or the amount of refund due to him or such other person. .

On December 20, 1978, the Wealth Tax Officer wrote a letter to RN and informed him that the Valuation Officer would be visiting the property bearing No.22, Raoji Bazar, Indore, which belonged to him, on January 9, 1979, RN and his wife filed a suit stating that the suit property had been handed over to a trust on November 1, 1956, that, however, because of holiday on November 1, 1956, the said deed could not be written on October 30, 1956, or November 1, 1956, and that the said deed was written on November 3, 1956. They prayed for a declaration that the suit property be declared as property belonging to the trust on November 2, 1956. The District Judge dismissed the suit. On appeal

Held, dismissing the appeal, that there was no acceptable evidence on record to indicate, that on October 30, 1956, the property in question was transferred in the name of the abovementioned trust. The provisions of the Wealth Tax Act were made applicable within the State from November 1, 1956. By taking advantage of the public holiday falling on November 2, 1956, the appellants prima facie wanted to take out this property from the ambit of assessment so far as liability for payment of wealth tax was concerned. The District Judge had rightly concluded that the Civil Court did not have the jurisdiction to entertain the suit.

Mama Debi Goenka v. Union of India (1978) 115 ITR 423 (Cal.) ref".

V.M. Rege for Appellants.

D.D. Vyas for Respondents.

JUDGMENT

J.C. CHITRE, J. ---The appellant is hereby assailing the correctness, propriety and legality of the order which has been passed by the District Judge, Indore, in the matter of Civil Suit No.6-A of 1979 on December 5, 1980, by which the learned District Judge dismissed the result filed by the appellant. While dismissing the suit, the learned District Judge held that in view of the provisions of section 43 of the Wealth Tax Act, 1957 (hereinafter referred to as the Act for convenience), the civil Court did not have the jurisdiction to decide the present suit.

The few facts need to be stated for the purpose of unfolding the controversy indicated by the present appeal are stated as mentioned hereunder. As averred by the appellant, on October 30, 1956, Rao Nihalkaran, son of Rao Chhattrakaran and Mrs. Vandanadevi, wife of Rao Nihalkaran, executed a trust deed and by that deed Rao Nihalkaran transferred the suit property which was belonging to him bearing No.22, Raoji Bazar, Indore, to the said trust. The original plaintiffs in the said suit averred further that the possession of the suit property was handed over by both Rao Nihalkaran and Mrs. Vandanadevi to the said trust on November 1, 1956. However, because of holiday on November 1, 1956, the said deed could not be written on October 30, 1956, or November 1, 1956. It was averred that the said deed was written on November 3, 1956.

The original plaintiffs further averred in the said suit that on November 6, 1978, the Wealth tax Officer, Ward No.l, Indore, wrote a letter to the original plaintiffs and informed them that the suit property would be treated as belonging to Rao Nihalkaran on November 2, 1956, and would be assessed for the purpose of wealth tax. According to the averments made in the plaint, the Valuation Officer was to visit the suit property on January 9, 1979.

The plaint discloses that the original plaintiffs made a prayer for a declaration that the suit property be declared as property belonging to the said trust on November 2, 1956, and not as one belonging to Rao Nihalkaran. It also discloses that a prayer was also made to the Court for restraining the concerned officers of defendants from visiting the suit property decided by them.

The respondent (original defendants) filed a written statement and contended that no such trust was created on November 2, 1956. It was also contended that in view of the provisions of section 43 of the Act, the civil Court did not have the jurisdiction to entertain the present suit.

Shri V.M. Rege, counsel for the appellant, by making reference to the provisions of section 43 of the Act and the record submitted that the impugned order is not correct, proper and legal because in view of the provisions of section 43, the Civil Court was having the jurisdiction to entertain and decide the present suit as it has been brought. For substantiating his argument, he placed reliance on the judgment of the Calcutta High Court in the matter of Maina Debi Goenka v. Union of India (1978) 115 ITR 423.

Shri. D.D. Vyas, learned standing counsel appearing for the respondents, argued by making reference to section 43 of the Act and the record that after refuting the averments made in the plaint there cannot be any doubt that the civil Court did not have jurisdiction to entertain and decide the present suit. He submitted that the civil Court does not have jurisdiction to decide any suit which has been indicated by the provisions of section 43 of the Act.

As disclosed by the copy of the judgment which is impugned by this appeal, section 43 of the Wealth Tax Act, was reading the relevant time as follows:

"No suit shall lie in any civil Court to set aside or modify any assessment made under this Act, and no prosecution, suit or other legal proceedings shall lie against the Government or any officer of the Government for anything in good faith done or intended to be done under this Act."

It is the argument of Shri Rege that the property in question was not the property of Rao Nihalkaran because it was transferred in favour of the appellant-trust on October 30, 1956. Shri D.D. Vyas, for the respondents, submitted that the suit property was not belonging to the trust as alleged by the appellant but it was the property of Rao Nihalkaran and, therefore, it was liable to be assessed in view of the provisions of the Act. Shri Vyas pointed out that the officers of the respondents were to visit the said property on. December 22, 1978, January 9, 1979, in pursuance -of the notice which was given to Rao Nihalkaran and his wife. He pointed out that if the averments which have been mentioned in paragraph No.9 of the plaint by the appellant are considered, one will have to come to the conclusion that the process of assessment has--started and, therefore, the appellants were not entitled to bring any suit for getting the relief as prayer for by them in paragraph No.9 of the plaint. Countering this, it is the contention of Shri Rege that the appellants are not praying for any relief so far as assessment is concerned. He reiterated the contention of the appellants in the plaint is that the suit was not brought for modifying any assessment made under the Act.

Section 2, clause (c), gives the definition of "assessee" as a person by whom wealth-tax or any other sum of money is payable under this Act. Sub-clause (i) of clause (c) defines "assessee" as every person in respect of whom any proceeding under this Act has-been taken for the determination of wealth tax payable by him or by any other person or the amount of refund due to him or such other person. Sub-clause (ii) speaks of a person who is deemed to be an assessee. The averments made by the appellants in the plaint paragraph No.4 show that on December 20, 1978, respondent No.4 wrote a letter to Rao Nihalkaran and informed him that respondent No.3 would be visiting the suit property on January 9, 1979. It means that the proceedings had already been started in respect of assessment of the assets of the assessee, Rao Nihalkaran. It also means that in continuation of that proceedings, respondent No.3 was to visit the suit property on January 9, 1979. The appellants are making a prayer in paragraph 10 of the plaint that house No.26, Raoji Bazar, Indore, be declared to be the property of the abovementioned trust and it be declared that the said trust was the owner of the said property on October 30, 1956. It is also prayed in the plaint that respondents Nos. l, 2, 3, 4, 5 and 6 be restrained from encroaching on the said property. The entire meaning indicated by the averments made in the plaint show that the appellants wanted to restrain respondents Nos.3 and 4 from visiting the suit Property on January 9, 1979, and thereafter. It means that the appellants indirectly wanted to prohibit the respondents from assessing the assets of the appellants so far as liability for payment of wealth- tax is concerned. They thus wanted to stop the process of assessment.

The learned District Judge has pointed out in his judgment in paragraph No.6 by making reference to the reply filed by the respondents that by virtue of the provisions of section 12-A of the Act the Valuation Officer can be appointed for the purpose of valuation of the property and by the provisions of section 16-A, the aggrieved person can make a reference to the competent authority. It has been pointed out that in view of the provisions of section 38-A, the property to be valued can be inspected. This process is to be carried out in accordance with section 43 of the Act. The Wealth Tax Act has provided for an appeal to the Commissioner in respect of the grievance in assessment and if the Commissioner finds it necessary the property can be revalued, reassessed. The structure of the Wealth Tax Act indicates that it is a self-contained code and all necessary remedies have been provided for an aggrieved person to get his grievance redressed by filing an appeal before the competent authority provided by the Act.

Shri D.D. Vyas has submitted that keeping in view the structure of the Wealth Tax Act, it being a self-contained code, no suit can be entertained by the civil Court. It is the submission of Shri Rege that a suit can be filed in the civil Court if it is riot hit by limits provided by section 43 of the Act.

After giving considerable attention to the entire provisions of the Wealth Tax Act, we come to the conclusion that a suit can-be filed in the civil Court for the purpose of getting the relief in respect of grievances which are not covered by the provisions of section 43. No suit can be brought in the civil Court for setting aside or modifying any proceeding taken or order made under the Wealth Tax Act and no prosecution, suit or other legal proceeding shall lie against the Government or any officer of the Government for anything in good faith done or intended to be done under the Wealth Tax Act.

So far as the present matter is conferred, there is no acceptable evidence on record to indicate prima facie that on October 30, 1956, the property in question was transferred in the name of the abovementioned trust. The provisions of the Wealth Tax Act were made applicable within the State from November 1, 1956. By taking advantage of the public holiday falling on November 2, 1956, the appellants prima facie wanted to take out this property from the ambit of assessment so far as liability for payment of wealth tax is concerned.

It is noticed these days that some persons filed civil suits in civil. Courts for avoiding the effective provisions of special Acts, when the special enactment is a self-contained code and the jurisdiction of the civil Court has been ousted by that special enactment. While filing such suits, the prayer clause of the plaint is drafted trickily to avoid the ouster provision in respect of the jurisdiction of the civil Court, such practice has to be deprecated. The Courts are to be on guard for nipping such suits in the bud. The present suit smells of that. We show our disapproval of the attempt made in this suit in that direction. The learned District Judge has rightly concluded that the civil Court did not have the jurisdiction to entertain the present suit.

We do not find anything improper, incorrect or illegal in the order of the learned District Judge though he has not discussed some relevant, facets in his judgment which have been touched by us in this judgment. 41,

Thus, the appeal fails and stands dismissed with costs.

Counsel's fee Rs.400 if certified.

M.B.A./1818/FCAppeal dismissed.