1962 INSC 0075
                                               Soorajmull Nagarmull

                                                           Vs

                               Commissioner of Income-Tax (Central), Calcutta

                                     I.T.A. Nos. 7225 and 7341 of 1954-55

                                   (S. K. Das, M. Hidayatullah, J. C. Shah JJ)

                                                      19.02.1962

                                                     JUDGMENT

SHAH J. ­

The assessees and the Commissioner have preferred appeals against the order of the Tribunal passed
under section 33(4) of the Indian Income-tax Act, after their applications to the High Court of
Calcutta for orders requiring the Tribunal to state a case under section 66(2) were dismissed.

Counsel for the assessees contends that even if his appeal against the order of the High Court under
section 66(2) fails on the merits, this court has power to consider their appeal against the order of
the Tribunal. This court in Chandi Prasad Chokhani v. State of Bihar, in dealing with cases where
against the order passed by a tax Tribunal, without appealing against the order of the High Court
refusing to call for the statement of the case set out the practice as follows :

                  "(a) Where the aggrieved party approaches the High Court under a taxing statute for
                  an order calling for a statement of the case and the High Court rejects the application,
                  this court in exercise of its powers under article 136 will not ordinarily allow the
                  order of the High Court to be by-passed by entertaining an appeal directly against the
                  order of the Tribunal. Such exercise of power would be particularly inadvisable
                  where the result may be conflict of decisions of two courts of competent jurisdiction.
                  The scheme of the taxing statutes is to avoid such a conflict by making the decision
                  of the taxing authorities on questions of fact final subject to appeal, revision or
                  review as provided by the statutes and the decision of the High Court subject to
                  appeal to this court final on questions of law.

                  (b) This rule does not bar the court from granting special leave where circumstances
                  are exceptional, such as, in Dhakeswari Cotton Mills Ltd. v. Commissioner of
                  Income-tax, where the Tribunal has violated fundamental rules of justice or as in
                  Baldev Singh's case, where on account of special circumstances over which the
                  aggrieved party has no control the High Court was unable to consider the application
                  for calling for a statement of the case on the merits, and the right of the party to
                  approach the High Court was thereby lost."

Counsel for the assessees contended that in Chokhani; case no appeal at all was filed by the assesses
against the order of the High Court and the principle of that case is inapplicable in a case where the
aggrieved party has appealed against the order of the High Court as well as against the order of the
Tribunal. It is true that in the case before us appeals have been filed against the order of the Tribunal
deciding the appeal under section 33(4) of the Indian Income-tax Act as well as the order of the
High Court under section 66(2) refusing to require the Tribunal to state a case; but we fail to see any
distinction in principle between a case in which in appealing against the order of the Tribunal no
appeal is filed against the order of the High Court, and a case in which an appeal is filed against the
order of the Tribunal as well as against the order of the High Court and the latter appeal is dismissed
because it has no merit.

Counsel has not invited our attention to any special or exceptional circumstances in this case. We
have heard elaborate arguments on behalf of the assesses and the Commissioner on their respective
contentions and for reasons already set out are of opinion that no case is made out for calling for a
statement of the case from the Tribunal. If we proceed to hear the appeal against the order of the
Tribunal after upholding the order of the High Court that no question of law arose out of the order
of the Tribunal, it would be a departure from the well settled rule that was ordinarily do not in
exercise of our jurisdiction under article 136, enter upon a reappraisal of the evidence on which the
order of the court or Tribunal is founded. The legislature has expressly entrusted the power of
appraisal of evidence to the taxing authorities, and the decision of those authorities would ordinarily
be regarded as final. This is not to say that in a proper case this court may not, in the interest of
justice when occasion d

On this ground the Appeals Nos. 238 and 239 of 1961 filed by the assessees and the Commissioner
against the order of the Tribunal must fail and are dismissed with costs. One hearing fee.

Appeals dismissed.

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