TaxTMI 
TaxTMI 
1995 (9) TMI 19
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....amely, Birla Jan Kalyan Trust, which had in its turn received such shares from the private trust as donation. The other two trusts also filed the writ applications on similar ground challenging the orders of the Tax Recovery Officer attaching such shares owned and held by them. The writ petitions challenging the orders of attachment were moved by the said two trusts and the petitioner-trust on the same day. The writ applications of the other two trusts were marked C. R. Nos. 6549(W) and 6550(W) of 1977. This writ petition was heard earlier by Susanta Chatterjee J., and at such hearing supplementary affidavit was filed incorporating facts subsequent to the filing of the writ petition and written submissions were also submitted. The judgment was reserved but was not delivered by Susanta Chatterjee J. The records of the case were misplaced and have now been reconstructed. The cases of the said two other trusts being C. R. Nos. 6549(W) and 6550(W) of 1977 came up for final hearing before Ajit Kumar Sengupta J., as he then was, and were finally disposed of by the judgment dated July 30, 1992, reported as Anandilal Goenka v. TRO [1994] 208 ITR 46 (Cal). All the contentions raised and ....
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....er that a service of the order as prescribed by rule 26 of the Second Schedule to the Act is a sine qua non for making an attachment. It has been submitted that the attachment is made only by service of the order prohibiting the person in possession of the shares from dealing with it. The learned advocate for the petitioner has further submitted that the order becomes effective only when served and not otherwise. It has further contended that as the attachment itself has taken place at Calcutta and the property attached is lying at Calcutta, a part of the cause of action has arisen within the jurisdiction of this court. In support of this contention, the learned advocate has referred to paragraphs 55 and 56 of Anandilal's case [1994] 208 ITR 46 (Cal). The learned advocate for the petitioner has relied upon the judgment and decision in the case of Everest Coal Co. (P.) Ltd. v. Coal Controller [1986] 90 CWN 438. It has been submitted by him that in the aforesaid decision, it was held that if an order is passed by an authority beyond the territorial limits of a particular High Court but the same is given effect to against the petitioner within the said High Court's jurisdiction,....
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.... are within the jurisdiction of this court since April, 1978. This aspect was also considered in Anandilal's case [1994] 208 ITR 46 (Cal), while rejecting the respondents contention as to the jurisdiction of this court. The learned advocate for the respondents has further argued that the decisions relied upon on behalf of the petitioners dealing with analogous provisions of the Civil Procedure Code as rule 26 of the Second Schedule to the Act, it was submitted on behalf of the respondents that the said decisions are not relevant as the Civil Procedure Code was not applicable to the writ proceedings. It has also been submitted on behalf of the respondents that section 141 of the Code has been amended to provide that the proceedings referred to in the said section did not include proceedings under article 226 of the Constitution. The learned advocate for the petitioner has further submitted that the contention of the respondent cannot be accepted since there is no issue involved in the instant case as to whether the present proceedings are to be governed by the provisions of the Civil Procedure Code or the Rules made by this court under article 226 of the Constitution. The w....
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....e [1994] 4 SCC 711, it was held that no part of the cause of action arose within the jurisdiction of the High Court as tenders were to be submitted at New Delhi and were to be scrutinised at New Delhi and a final decision on acceptance of such tender was also to be taken at New Delhi. The Supreme Court further held that even the rejection of the tender was not communicated at Calcutta since such rejection occurred only on January 27, 1993, and not on January 15, 1993, the date when the fax message was received at Calcutta. However, if the tenders were to be submitted from Calcutta and the rejection was communicated at Calcutta then the said decision itself shows that part of the cause of action would have arisen at Calcutta. It may be noted, however, that the said judgment of the Supreme Court was delivered in the special leave petition filed against the decision of the court in the case of Utpal Kumar Bose v. ONGC, AIR 1994 NOC 296 (Cal) ; [1994] 1 CLJ 448. It is apparent from the said judgment of this court that the question of jurisdiction was not argued before this court. In the said judgment details of the arguments on the merits of the case advanced on behalf of the petiti....
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....s a result of the impugned orders, we are afraid, there would not have given rise to any cause of action either wholly or in part, in Calcutta. Normally no person institutes any suit or proceeding unless his right is jeopardized or prejudiced in consequence of any action of a private individual or of the Government. In the writ petition, there has been a categorical averment of the suffering of loss by Hindustan Aluminium Corporation Ltd. by the sale of aluminium and aluminium products in Calcutta. We are now not concerned with the truth or otherwise of the allegation as the question of jurisdiction is to be determined on the basis of the allegations made in the writ petition. If there was no such allegation of any loss suffered by Hindustan Aluminium Corporation Ltd. in Calcutta, the High Court would not entertain the writ petition, however, illegal the impugned orders may be. A writ petition is not entertained unless the petitioner comes with a case that he has been prejudiced by any action of the Government or a statutory body or authority. So, in our opinion, the writ petition, prima facie, discloses that a part of the cause of action arose in Calcutta within the jurisdiction o....
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....on of this court. This aspect has been dealt with in Anandilal's case [1994] 208 ITR 46 (Cal). The relevant decisions on the point are discussed hereinafter : (a) In the case of Everest Coal Co. (P.) Ltd. v. Coal Controller [1986] 90 CWN 438, a Division Bench of this court at page 443 of the said reports held as under : " An order has been made by an authority or person at a place beyond the territorial limits of a particular High Court but the same is given effect to against the petitioner within the said High Court's jurisdiction. In such a case, at least a part of the cause of action arises, where the impugned order is implemented. Thus, when an order becomes effective only when it is communicated or served, the service of the order or receipt of a notice thereof would form part of the cause of action for filing a writ petition by the person aggrieved thereby. " In Everest Coal's case [1986] 90 CWN 438, the Supreme Court decision in the case of State of Rajasthan v. Swaika Properties, AIR 1985 SC 1289, was also considered. The decision in Swaika Properties' case, AIR 1985 SC 1289, was also followed and relied upon in ONGCs case [1994] 4 SCC 711. In Anandilal's case [....
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....oyee or for any other reason was not material but what was material was the fact that it was communicated to him at Ahmedabad. The court further held that it could not subscribe to the submission of the employer that the consequence of the termination order fell on the respondent only at Calcutta because the employee was posted at Calcutta. It further held that although a part of the cause of action can be said to have arisen at Calcutta also but that could not nullify the fact that its consequences also fell at Ahmedabad where the employee was informed of the termination of his services. In the case of Union of India v. P. Kunhabdulla [1985] 1 LLJ 331, relied upon by the learned advocate for the petitioner, Justice M. Fathima Beevi as she was then held that the order of removal became effective only on acceptance of the order communicated by registered post. In the said case the action was taken by the authorities outside the State of Kerala. The employee concerned was not serving in the State of Kerala. However, since the order was received by the petitioner in Kerala the court held that it had jurisdiction to entertain the writ petition. In the case of Keshavlal Madhavji v....
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....AIR 1985 SC 1289, held that if communication is required to make the order effective then communication of such order would be part of the cause of action. As submitted hereinbefore the order of attachment cannot be effective unless it is served. The order of attachment was served and became effective at Calcutta. The property in question, namely, shares, which were attached were also at Calcutta and as such part of the cause of action arises within the jurisdiction of this court. In Anandilal's case [1994] 208 ITR 46, this court also so held. The decision in ONGC's case [1994] 4 SCC 711 thus does not in any way affect the ratio of the decision in Anandilal's case [1994] 208 ITR 46 (Cal). It cannot also be disputed that the files of the private trust including the tax recovery case have been transferred from Jaipur to Calcutta with effect from April 15, 1978, and the assessments including recovery proceedings are now with the authorities at Calcutta and, as such, the contention as to the jurisdiction of this court taken by the respondents apart from being devoid of merit is of no consequence. All records and proceedings and the authorities are within the jurisdiction of this cou....
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....t petition has been filed in accordance with the Rules of this court framed under article 226 of the Constitution and the contention raised by the respondents is difficult to appreciate. In Anandilal's case [1994] 208 ITR 46 (Cal) and at the hearing of this case the decisions relating to the Civil Procedure Code have been referred to not on the issue whether the Civil Procedure Code applies to writ proceedings but for interpreting the provisions of the Rules in Schedule II of the Act relating to the attachment of shares, etc., which are analogous to provisions made in the Code. Accordingly, the decisions relied upon by the petitioner and those considered in Anandilal's case [1994] 208 ITR 46 (Cal) are relevant for determining the issues involved herein. The question of amendment of section 141 of the Code and of inapplicability of its provision to the writ proceedings does not arise and have no relevance. It is not the contention of the petitioner that the writ petition is governed by the provisions of the Civil Procedure Code. What the petitioner has contended is that the decisions interpreting analogous and similar provisions in the Civil Procedure Code should be followed a....
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....cle 226 of the Constitution. It is only a matter which the court can take into consideration while exercising its discretion in the matter. In the instant case, the issue does not involve any disputed questions of fact and is relating to the jurisdiction of the Tax Recovery Officer to attach the shares and decide questions of title. Further, the issues involved are already concluded by a decision of the Division Bench of this court in Raja Baldeodas Birla Santatikosh v. CIT [1991] 190 ITR 578. Further, on identical facts, this court has on two other writ applications moved on the same day granted relief under article 226 of the Constitution (Anandilal's case [1994] 208 ITR 46 (Cal)). Moreover, the petition was filed in the year 1977. The respondents have not chosen to file even their affidavit-in-opposition in the matter and are seeking to raise this objection after a lapse of 18 years. The case is of a public charitable trust. The issues are concluded by the decisions of this court. There is no demand outstanding from the assessment years 1971-72 to 1974-75 against even the private trust for recovery of which the purported attachment was sought to be made. The only demand against ....