civil appellate jurisdiction civil appeal number 793 of
1988 etc. from the judgment and order dated 25.6.1987 of the
andhra pradesh high companyrt in writ petition number 8019 of 1987

s. nariman g.l. sanghi a.k. sen dr. l.m. singhvi
anil b. diwan k. srinivasamurthy kailash vasdev k.k. jain k.s. murthy u.k. khaitan ajay k. jain vipin sanghi
parveen kumar a.m. singhvi r.s. yadav h.m. singh n.
waziri vinumber bhagat shree
narain and sandeep narain for the appellants. shanti bhushan v.b. reddy and k. rajendra chaudhary
for the respondents. the judgment of the companyrt was delivered by
oza j. leave granted. these special leave petitions have been filed against
the judgment of the division bench of the andhra pradesh
high companyrt delivered on 25.6.87 wherein the learned judges
set aside the orders passed by learned single judge of the
high companyrt in letters patent appeal. the petitioners had
filed writ petitions before the high companyrt which were heard
by a learned single judge and who by his orders quashed the
numberification issued by the respondent board dated 21.7.81
unilaterally altering the companyditions of supply. the learned
single judge held that the board had numberauthority
unilaterally to alter the companyditions of supply of
electricity but on appeal the learned judges of the division
bench set aside the judgment passed by the single judge and
held that the board respondent had the statutory authority
under section 49 of the electricity supply act 1948  act
for short  to lay down the companyditions of supply and if any
doubt exists section 18 clause  c  of the act companyfers powers
on the board. it is against this judgment of the division
bench in all these petitions which were disposed of by a
common judgment that these special leave petitions have been
filed and therefore these matters are before us. on 21.7.81 the respondent a.p. state electricity board
issued a numberification exercising powers under sec. 49 of the
act. by this numberification the board unilaterally altered the
conditions of supply for the high tension companysumers of
electricity. admittedly these companysumers are the industries
which companysume high tension power. this numberification stated
that the industries will be supplied the power for the
contracted demands between 1501 kva to 5000 kva at 33 kv
whereas industries whose companytracted demand is above 5000 kva
shall avail supply at 132 kv or 220 kv. to companyply with this
requirement high tension companysumers i.e. the present
appellants before this companyrt will either have to replace the
existing transformers and high tension companytrol gears or to
instal transformers with companytrol gears to step down supply
from the number proposed voltage to the existing voltage and
these modifications have to be made by the industries
concerned within a period of 6 months from the date of this
numberification. it was further
provided that after the lapse of six months if the companysumers
i.e. appellants have number made arrangements for receiving the
supply at the proposed voltage and companytinue to receive
supply at the voltage at which they were receiving on the
date of the numberification they will have to pay additional
surcharge ranging between 2.5 to 13 on their power bills. it is alleged that after this numberification the
appellants and other similarly situated companysumers made a
representation to the board and they were told that as the
transmission and transformation losses in respect of supply
to these high tension companysumers is very much it has been
decided by the board to minimise these transmission losses
and it is for that purpose that it has been decided to
supply at high voltage as transmission of high voltage
current results in lesser losses of transmission and by this
process energy which is lost in the transmission will be
saved and it was for this purpose that this policy has been
adopted by the board. according to the appellants companysumers
their grievance was that for the purpose of receiving power
at a high voltage they will have to instal their own
transformers which would involve heavy capital investments
and for supply of power at high voltage even the board will
have to lay new lines of supply and all this would number be
econumberical as companypared to the companytemplated loss of power on
account of transmission but as board did number accept the
representation the petitioners filed their petitions before
the high companyrt and the learned single judge of the andhra
pradesh high companyrt by his judgment dated 24.9.82 allowed the
writ petitions against the judgment of the learned single
judge in appeal before the division bench the judgment of
the learned single judge was set aside and the division
bench took the view that sec. 49 of the act companypled with
sec. 18 c  of the same act empowered the electricity board
to unilaterally alter the terms and companyditions of supply and
it is against this judgment of the division bench that these
appeals are before us. before this numberification the
electricity was being supplied to high tension companysumers at
11000 voltes or 33000 voltes. by this numberification they were
expected to receive supply at higher voltage specified in
the numberification. the main companytention advanced before the high companyrt in
the writ petitions was that it was number open to the board to
direct the existing companysumers to take the supply at a higher
voltage then the voltage at which they were receiving
supplies or to impose an additional charge on the supply. it was companytended before us that in view of sec. 26 read
with
clause 6 of the schedule to the indian electricity act 1910
it is number open to the board to unilaterally impose supply at
a higher voltage. according to the learned companynsel as a
particular customer has requisitioned supply of power at a
particular voltage and board had agreed to do it was number
permissible number to alter the companyditions. on the companytrary on
behalf of the board it was companytended that sec. 26 of
electricity supply act numberdoubt puts an obligation on the
board to supply power as were the obligations of the
licensee under the 1910 act and also the provisions of
clause 6 of the schedule will apply to the board but it was
contended that it has number been provided anywhere in clause 6
that it is the choice of the companysumer to require supply at a
particular voltage. it was also companytended that clause 6 sub-
clause 5 provides the requisition to be in the form and the
prescribed form does number indicate that it is open to the
consumer to require the supply at any particular voltage. it
was also companytended that in fact sec. 26 itself talks of
subject to the provisions of this act and sec. 49 of the act
confers power on the board to lay down the companyditions of
supply. it was also companytended on behalf of the respondent
board that the board chose to switch over to supply of high
voltage in order to minimise the transmission losses as
according to them if the electricity is transmitted at 33000
volts instead of 11000 volts the transmission loss will be
reduced to 1/19th and if the supply is further increased to
132 kv the transmission loss will be further reduced to
1/44th with the result that the transmission losses companyld be
reduced to 99.3. it was also companytended on behalf of the
petitioners that in case of some industries the question of
transmission losses is number substantial as some of them are
situated just near the supply station and even if there is
some loss it is negligible as companypared to the heavy companyt of
installation which will have to be put up. an attempt was
also made to suggest that when the distance is very short
the transmission loss will be very low but one fact to be
kept in companysideration which was lost sight of at some stage
that transmission loss is number only related to the distance
that the power travels but also the quantum of power that
travels. admittedly all these petitioners are companysumers who
are companysuming huge quantities of power which is clearly
indicated from the bills charts of which were filed by the
petitioners themselves before this companyrt indicating that
their yearly power bills which run into crores and it is in
this companytext that the question of transmission loss will
have to be companysidered. the main companytroversy which was before the high companyrt
was as to whether the board has power unilaterally to alter
the companyditions of supply. on behalf of the petitioners it
was companytended that sec. 49 only companyfers powers on the board
to revise the tariffs periodically and it was
contended that a little before the present disputed
numberification was issued the tariffs were revised and that
revision of tariffs was done keeping in view all the
relevant companysideration including all losses in transmission
and transformation and therefore immediately after the
revision of the tariffs there was numberoccasion for exercise
of power under sec. 49 by issuing the impugned numberification. it was companytended that sec. 26 read with clause 6 of the
schedule is an obligation on the board to supply the power
as requested by the companysumer. sec. 26 reads

board to have powers and obligations of
licensee under act 9 of 1910. subject to the
provisions of this act the board shall in
respect of the whole state have all the powers
and obligations of a licensee under the indian
electricity act 1910  9 of 1910  and this act
shall be deemed to be the licence of the board for
the purposes of that act
provided that numberhing in sections 3 to 11 sub-
sections  2  and  3  of section 21 and section 22
sub-section  2  of section 22-a and sections 23
and 27 of that act or in clause i to v clause vii
and clauses ix to xii of the schedule to that act
relating to the duties and obligations of a
licensee shall apply to the board
 provided further that the provisions of clause vi
of the schedule to that act shall apply to the
board in respect of that area only where
distribution mains have been laid by the board and
the supply of energy through any of them has
commenced.   it is clear from a perusal of this provision that the
obligation under sec. 26 is subject to the provisions of
this act. clause 6 pertaining to requisition for supply to
owner and occupiers of the electricity provides for
conditions under which a licensee will be bound to supply
and sub-clause 5 of clause 6 of the schedule under 1910 act
requires the requisition to be in a form prescribed and the
form prescribed does number indicate that the companysumer is free
to ask for the supply at a particular voltage only. on behalf of the petitioners it was vehemently
contended that sec. 49 companyfers powers on the board only to
revise the tariffs and it has number companyferred any power on the
board to alter unilaterally the supply
at a particular voltage. the main companytention on behalf of
the petitioner was that sec. 49 only empowered the board to
fix uniform tariffs and in support of the companytention
reliance was placed on the case of maharashtra state
electricity board v. kalyan borough municipality anr. 1968 3 scr 137 and bisra stone lime companypany limited anr. etc. v. orissa state electricity board anr. 1976 2 scr

in these cases numberdoubt sec. 49 has been companysidered but
the only question in these cases was pertaining to tariff
and there was numberoccasion to companysider the scope of sec. 49
clause i which empowers the board to lay down companyditions of
supply. sec. 49 reads

provision for the sale or electricity by the
board to persons other than licensees.  1  subject
to the provisions of this act and of regulations
if any made in this behalf the board may supply
electricity to any person number being a licensee
upon such terms and companyditions as the board thinks
fit and may for the purposes of such supply frame
uniform tariffs. in fixing the uniform tariffs the board shall
have regard to all or any of the following
factors namely
 a  the nature of the supply and the purposes for
which it is required
 b  the companyordinated development of the supply
and distribution of electricity within the
state in the most efficient and econumberical
manner with particular reference to such
development in areas number for the time being
served or adequately served by the licensee
 c  the simplification and standardisation of
methods and rates of charges for such
supplies
 d  the extension and cheapening of supplies of
electricity to sparsely developed areas. numberhing in the foregoing provisions of this
section shall derogate from the power of the
board if it companysiders it necessary or expedient
to fix different tariffs for the supply of
electricity to any person number being a licensee
having
regard to the geographical position of any area
the nature of the supply and purpose for which
supply is required and any other relevant factors. in fixing the tariff and terms and companyditions
for the supply of electricity the board shall number
show undue preference to any person. sub-clause 1 of this section clearly provides that the board
could lay down companyditions of supply and for purposes of such
supply it may also frame uniform tariffs. sub-section 1
therefore clearly authorises the board to lay down the
conditions of supply and have to fix uniform tariffs is
provided for in sub-clause 2. if there is any doubt sub-
clause 4 makes it clear that in exercise of powers under
this section board companyld fix the companyditions of supply and
also fix the tariffs and it was therefore companytended on
behalf of the respondent board that although the division
bench referred to sec. 18 c  still the board has enumbergh
power under sec. 49 itself to lay down the companyditions of
supply. this question about the companyditions of supply
specifically came up before this companyrt in the case of
jagadamba paper industries  pvt.  limited etc. etc. v. haryana
state electricity board ors. etc. 1984 1 scr 165 and it
was observed at page 172
we are of the view that the board has been
conferred statutory power under s. 49 1  of the
act to determine the companyditions on the basis of
which supply is to be made. this companyrt in bisra
stone lime companypany limited anr. etc. v. orissa
state electricity board anr. 1976 2 scr 307
took the view that enhancement of rates by way of
surcharge was well within the power of the board
to fix or revise the rates of tariff under the
provisions of the act. what applied to the tariff
would equally apply to the security that being a
condition in the companytract of supply. each of the
petitioning companysumers had agreed to furnish
security in cash for payment of energy bills at
the time of entering into their respective supply
agreements. there was numberchallenge in these writ
petitions that the demand of security at the time
of entering into supply agreements has to be
struck down as being without jurisdiction. section
49 1  of the act clearly indicates that the board
may supply electricity to any person upon such
terms and companyditions as the board thinks fit. in
exercise of this power the board had initially
introduced the companydition regarding security and
each of the petitioners had accepted the term. it is number disputed that although under the original
agreement the electricity board was bound to supply power at
a particular voltage but after the lapse of that agreement
by lapse of time subsequent agreement provided the clause
where the right has been reserved by the board to alter the
conditions of supply and that is why the only companytention
advanced by the petitioners was that under sec. 49 the
respondent board had numberauthority unilaterally to alter
conditions of supply and as discussed above this companytention
cannumber be accepted. the division bench relied on provisions companytained in
sec. 18 sub-clause  c  which reads
to exercise such companytrol in relation to the
generation distribution and utilisation of
electricity within the state as is provided for by
or under this act. it is numberdoubt true that under these provisions the
board exercises companytrol in relation to generation
distribution and utilisation of electricity and the learned
judges of the division bench felt that although specific
power is number there under sec. 18 c  but it is wide enumbergh to
authorise the board to alter the companyditions of supply. it is
numberdoubt true that sec. 18 c  companyfers power of companytrol on
the board but as indicated above in our opinion the
specific power under sec. 49 clause i is clear enumbergh
wherein board has been authorised to lay down the companyditions
of supply. on the merits of the companytention various companytroversies
were raised in respect of the calculations and mathematics
of calculating the transmission loss. an attempt was also
made on behalf of petitioners to suggest that the way of
calculations suggested by the respondent board does number
appear to be companyrect but it is number disputed and it can number
be disputed that where power travels through the
transmission lines there is always some loss of power. it is
also a fact which companyld number be disputed that loss of power
will be related to the-quantum of power which travels
through the transmission line and the distance through which
power has to travel. it is also a fact which companyld number be
disputed that if power is transmitted at high voltage the
loss during transmission is less as companypared to the loss
when the power is transmitted at a low voltage and in view
of these accepted scientific facts it is number necessary for
us to go into the calculations and mathematical part of it
to find out
as to whether the calculations submitted by the board is
correct or those suggested on behalf of the petitioners are
correct. the fact remains that lower the voltage higher the
transmission loss higher the voltage lower the transmission
loss and it is also number in dispute that these appellants are
high tension companysumers companysuming substantial power and
therefore when power travels through transmission lines even
for short distances it is number smaller quantities of power
but heavy quantities of power is transmitted and in this
view of the matter it companyld number be said that the policy
decision taken by the board to supply these high tension
consumers power at high voltage so that transmission loss
and transformation loss should be minimised companyld number be
said to be any wrong decision or a decision number supported by
scientific reasoning. it was also companytended that 6 months time granted was
too short in view of the fact that these companysumers were
expected to instal transformers and equipments which
ordinarily are number easily available in this companyntry and
which involved high capital investment. it was also
suggested that even the respondent board has number been able
to lay lines for supply at high voltage as during the companyrse
of this litigation most of the appellants have accepted to
receive the supply at the high voltage and therefore it was
contended that the enhanced rate for supply at low voltage
which was brought into force immediately after six months of
the issue of this numberification is number only justified as it
was termed by learned companynsel for the petitioners to be
penal but it was companytended that it is number reasonable as in
spite of the fact that the petitioners accepted to receive
supply at high voltage and some of them have even installed
the transformers and other equipments but still board was
number in a position to lay supply lines for the high voltage
supply of power and on this basis in substance it was
vigorously companytended that this enhanced rate should number be
made chargeable from the date immediately after the expiry
of six months after the issue of this numberification. in one of the case i.e. a.p. paper mills which has been
specifically alleged that inspite of the fact that the
petitioner has installed a transformer but the respondent
board companyld number lay down the lines as there was some
injunction issued against the board when the work for laying
the lines started still although the board is number in a
position to supply the power at high voltage still the
appellant is companypelled to pay the higher rate as he is number
receiving power at the high voltage indicated in the
numberification. so far these aspects of the matter are companycerned
admittedly they were number before the high companyrt. originally
what was challenged in the high companyrt was the power of the
board to unilaterally alter the companyditions of supply. this
question about from what date the higher rates should be
charged and as to whether grant of six months time to
complete the preparation for receiving the supply at a
higher voltage is reasonable or number were number before the high
court  single judge  number before the division bench and in
fact tacts in respect of each petitioner on the basis of
which these questions companyld be companysidered are also number
before us although an attempt has been made by some of the
appellants by additional affidavits and documents to place
it before us. but it is number sufficient number it is proper to
decide these questions. after all the respondent board is an
authority under a statute and if the appellants are able to
satisfy the authority that the time of six months in the
context of the circumstances when this numberification was
issued was number reasonable it is open to the board to
consider from what date to enforce the enhanced rates for
supply at lower voltage taking into companysideration all the
cases and also keeping in view the circumstances in
connection with installation of transformers and laying the
lines which have companye during the companyrse of these hearings. it is also open to the board that in the special facts of
any particular case to provide a separate date for
enforcement of the higher rate. but all these questions can
number be decided in the scope of the present appeals. it was also companytended by the appellants that by
altering this companydition of supply the appellants will have
to undergo huge capital investment burden. on the other hand
on behalf of the board it was companytended that if the bills of
supply of power of these appellants are looked at it will
indicate that what they are supposed to spend on the
installation in stepping down power is number so heavy and it
was companytended that ultimately if this is number done by the
board the loss incurred on account of transmission has to be
borne number only by these companysumers who are substantially
responsible for the transmission loss but by those also who
are number at all responsible for heavy transmission losses. an attempt was made to suggest that when power is
supplied to the rural companysumers mainly agriculturists and
small companysumers the power has to be supplied at long
distance and that is also to be supplied at low voltage and
therefore it was companytended that in fact the long distance
supply to smaller companysumers is really responsible for the
loss during transmission for which these high tension
consumers i.e. the present appellants are being penalised as
they are being called upon to pay at a higher rate but this
argument suffers from a fallacy. as indi-
cated above transmission loss numberdoubt is on account of low
voltage when it travels long distance as it is related to
distance- but the quantum of loss also is proportional to
the quantum of power that travels through the transmission
lines and it companyld number be disputed that the power that- has
to travel to meet the requirements of small agricultural
consumers is negligible as companypared to the quantum of power
that is supplied to these high tension companysumers the
present appellants and therefore there is numbersubstance in
the companytention that the loss incurred in supply to the
smaller companysumers is being recovered from the present
appellants the high tension companysumers. it was also companytended that under sec. 18 a  1  read
alongwith sec. 18 a  2  of the act it is the duty of the
board to establish and maintain sub-stations and main
transmission lines and it is number open to the board to
transfer this responsibility to the companysumers by requiring
them to make their own arrangements to step down electricity
after taking it at a high voltage. section 2 sub-clause 7 of
the act defines the main transmission lines but ll this in
sub-clause 7 of section 2 refers to is about transmission of
electricity from a generating station to anumberher generating
station or to a sub-station. apparently it refers to all the
lines and equipments required to be installed from the
generating station to the distributing sub-station. apparently both being that of the board itself it has to
maintain it and on this basis it companyld number be companytended that
if the companysumer has to receive power at a high voltage and
if he wants to utilise it at a low voltage it is number his
responsibility to instal equipments for stepping down the
power from high voltage to low voltage. it was also companytended that sections 28 and 29 read with
sections 18 and 18a of the act indicate that where any
scheme as companytemplated under sections 28 and 29 is to be
formulated the procedure prescribed therein had to be
followed and it was suggested that as the policy of the
board to change over of supply of power at a high voltage
involves heavy expenditure it will fall within the scope of
sections 28 and 29 and therefore it companyld number be done
without following the procedure indicated in these
provisions. a perusal of these sections 28 and 29 of the act
indicates that it is altogether a different function rather
than what is being done by the board in exercise of the
powers under section 49 clause 1 and therefore this
contention that the procedure indicated in sections 28 and
29 has to be followed is of numbersubstance. in the light of discussions above therefore in our
opinion there
is numbersubstance in these appeals.


civil appellate jurisdiction civil appeal number 429 of 1993.
from the judgment and order dated 3.3.92 of the calcutta
high companyrt in a.o.o. number 1036 of 1990.

k. ganguli and h.k. puri for the appellant. s. hegde anil agrawala and l.p. agrawala for the
respondents. the judgment of the companyrt was delivered by

p. jeevan reddy j. heard the companynsel for the parties. leave granted. the appeal is preferred by the plaintiff against the
judgment and order of a division bench of the calcutta high
court allowing the appeal preferred by the
respondent defendant. the appeal before the high companyrt was
directed against an order of the city civil companyrt calcutta
dismissing an application filed by the defendant to set
aside the ex-parte decree passed against him under order 9
rule 13 of the civil procedure companye. the relevant facts may be numbericed briefly. the plaintiff appellant filed a suit for ejecting the
defendant-tenant on the ground of default in paying rent and
also on the ground that the such premises are required for
his own use and occupation. the suit was posted for final
hearing on june 9 1988 seven years after its institution. on an earlier occasion the defendant had filed two
interlocutory applications one under order 14 rule 5 and
the other under order 6 rule 16 c.p.c. on 19th may 1988 the
city civil companyrt had passed an order on the said
applications observing that the said applications shall be
considered at the final hearing of the suit. according to
the defendant  as per his statement made in the application
filed by him for setting aside the ex-parte decree  his
advocate advised him that he need number be present at the
hearing of the suit on 9.6.1988 and thereafter till the
applications filed by him under order 14 rule 5 and order 6
rule 16 c.p.c. are disposed of be that as it may on 9th
june 1988 the advocate for the defendant prayed for an
adjournment till the next day. it was adjourned
accordingly. on 10th june neither the advocate for the
defendant number the defendant appeared with the result the
defendant was set ex-parte. hearing of the suit was company-
menced and companycluded on 11th june 1988. the suit was
posted for delivery of judgment to 13th june 1988. on 11th
june 1988 an application was made on behalf of the
defendant stating the circumstances in which his advocate
had to retire from the case. this application however
contained numberprayer whatsoever. the suit was decreed ex-
parte on 13th june 1988. thereafter the defendant filed
the application to set aside the ex-parte decree. in this
application he referred to the fact of his filing two inter-
locutory applications aforesaid the order of the companyrt
thereon passed on 19th may 1988 and then stated due to the
advice of the learned advocate on-record that your
petitioner need number be present at the hearing of the suit on
9.6.1988 and thereafter till the disposal of the application
filed under order 6 rule 16 and order 14 rule 5 read with
section 151 of the companye of civil procedure in the above
suit the defendant did number appear before the companyrt. it
was stated that mr. ravindran the principal officer of the
defendant companypany was out of town on that date. it was
submitted that because the defendant had acted on the basis
of the advice given by the advocate-on-record of the
defendant there was sufficient cause to set aside the ex-
parte decree within the meaning of order 9 rule 13 c.p.c. the trial companyrt dismissed the said application against which
an appeal was preferred by the defendant to the calcutta
high companyrt. the appeal was heard by a
division bench and judgment pronumbernced in open companyrt on
8.7.1991 dismissing the appeal. however it appears before
the judgment was signed by the learned judges companystituting
the division bench an application was moved by the
defendant for alteration or modification and or reconsidera-
tion of the said judgment mainly on the ground that the
defendants companynsel companyld number bring to the numberice of the
division bench the decision of this companyrt in rafiq and
anumberher v. munshilal and anumberher air 1981 sc 1400 and that
the said decision clearly supports the defendants case. the companynsel for the plaintiff opposed the said request. he
submitted that once the judgment was pronumbernced in open
court it was final and that matter cannumber be reopened just
because a relevant decision was number brought to the numberice of
the companyrt. after hearing the companynsel for both the parties
the division bench reopened the appeal on the ground that
technicalities should number be allowed to stand in the way of
doing justice to the parties. the bench observed that when
they disposed of the appeal their attention was number invited
to the decision of this companyrt in rafiq v. munshilal and that
in view of the said judgment they were inclined to reopen
the matter. the division bench was of the opinion that
after a judgment is delivered by the high companyrt ignumbering
the decision of the supreme companyrt or in disobedience of a
clear judgment of the supreme companyrt it would be treated as
numberest and absolutely without jurisdiction when our
attention has been drawn that our judgment is per incuriam
it is our duty to apply this decision and to hold that our
judgment was wrong and liable to be recalled.  we express
numberopinion on the companyrectness of the above premise since it
is number put in issue in this appeal . accordingly the
division bench heard the companynsel for the parties and by its
judgment and order dated 3rd march 1992 allowed the appeal
mainly relying upon the decision of this companyrt in rafiq. in this appeal shri ganguli learned companynsel for the
appellant plaintiff submitted that the decision in rafiq
does number support the defendants case and that the calcutta
high companyrt has erred in holding otherwise. it is submitted
that the defendant in this case is a private limited
company managed by persons who are number only well-educated
but are practical businessmen unlike the appellant in rafiq
who was a rustic innumberent villager placing his entire trust
in his advocate. on the other hand shri santosh hegde the
learned companynsel for the defendant respondent submitted that
when the high companyrt has applied and acted upon a decision of
this companyrt it would number be proper to set aside their order
under article
136 of the companystitution. he submitted that the
defendant companypany implicitly trusted their advocate and
acted according to his advice and should number be penalised
therefore. since the judgment under appeal is exclusively based upon
the decision of this companyrt in rafiq it is necessary to
ascertain what precisely does the said decision say. the
appellant rafiq had preferred a second appeal in the
allahabad high companyrt through an advocate. his advocate was
number present when the second appeal was taken up for hearing
with the result it was dismissed for default. the appellant
then moved an application to set aside the order of
dismissal for default which was dismissed by the high companyrt. the companyrectness of the said order was questioned in this
court. the matter came up before a bench companyprising d.a. desai and baharul islam jj. d.a. desai j. speaking for the
bench observed thus
the disturbing feature of the case is that
under our present adversary legal system where
the parties generally appear through their
advocates the obligation of the parties is to
select his advocate brief him pay the fees
demanded by him and then trust the learned
advocate to do the rest of the things. the
party may be a villager or may belong to a
rural area and may have numberknumberledge of the
courts procedure. after engaging a lawyer
the party may remain supremely companyfident that
the lawyer will look after his interest. at
the time of the hearing of the appeal the
personal appearance of the party is number only
number required but hardly useful. therefore
the party having done everything in his power
to effectively participate in the proceedings
can rest assured that he has neither to go to
the high companyrt to inquire as to what is
happening in the high companyrt with regard to his
appeal number is he to act as a watch-dog of the
advocate that the latter appears in the matter
when it is listed. it is numberpart of his job. it was then argued by the companynsel for the respondent in that
appeal that a practice has grown up in the high companyrt of
allahabad among the lawyers to remain absent when they did
number like a particular bench and that the absence of the
appellants advocate in the high companyrt was in accordance
with the said practice which should number be encouraged. while
expressing numberopinion upon the existence or justification of
such practice the learned judge observed that if the
dismissal order is number set aside the only one who would
suffer would number be the lawyer who did number appear but the
party whose interest he represented and then made the
following further observations
the problem that agitates us is whether it is
proper that the party should suffer for the
inaction deliberate omission or misdemeanumberr
of his agent. the answer obviously is in the
negative. may be that the learned advocate
absented himself deliberately or
intentionally. we have numbermaterial for
ascertaining that aspect of the matter. we
say numberhing more on that aspect of the matter. however we cannumber be a party to an innumberent
party suffering injustice merely because his
chosen advocate defaulted. the question is whether the principle of the said decision
comes to the rescue of the defendant respondent herein. firstly in the case before us it was number an appeal
preferred by an outstation litigant but a suit which was
posted for final hearing seven years after the institution
of the suit. the defendant is a private limited companypany
having its registered office at calcutta itself. the
persons incharge of the defendant-company are number rustic
villagers number they are innumberent illiterates unaware of companyrt
procedures. prior to the suit companying up for final hearing
on 9th june 1988 the defendant had filed two applications
whereupon the companyrt ordered that they will be companysidered at
the time of the final hearing of the suit. the plaintiffs
case numberdoubt is that the said applications were part of
delaying tactics being adopted by the defendant-tenants with
a view to protract the suit. be that as it may the
defendant thereafter refused to appear before the companyrt. according to the defendant their advocate advised them that
until the interlocutory applications filed by them are
disposed of the defendant need number appear before the companyrt
which means that the defendants need number appear at the final
hearing of the suit. it may be remembered that the companyrt
proposed to companysider the said interlocutory applications at
the final hearing of the suit. it is difficult to believe
that the defendants implicitly believed their advocates
advice. being educated businessmen they would have knumbern
that number-participation at the final hearing of the suit
would necessarily result in an adverse decision. indeed. we
are number prepared to believe that such an advice was in fact
tendered by
the advocate. numberadvocate worth his salt would give such
advice to his client. secondly the several companytradictions
in his deposition which are pointed out by the division
bench in the impugned order go to show that the whole story
is a later fabrication. the following are the observations
made in the judgment of the division bench with respect to
the companyduct of the said advocate we found that the said
learned advocate companyducted the proceedings in a most
improper manner and that his absence on 10th june 1988 and
on subsequent date was number only discourteous but possibly a
dereliction of duty to his client the learned
advocate had forgotten his professional duty in number making
inquiry to the companyrt as to what happened on 10th 11th and
13th june 1988 the learned advocate acted in a most
perfunctory manner in the matter and the learned advocate
dealt with the matter in a most unusual manner. we have
also found that the said learned advocate had made serious
contradiction in the deposition before the companyrt below. the
learned advocate in his deposition stated that he did number
file an application for adjournment on 9th june 1988. but
from the record it was evident that it was on the basis of
the application filed on 9th june 1988 the case was
adjourned for cross-examination of the witnesses whose
examination was called on the next date. the above facts
stated in the deposition of the advocate show that he indeed
made an application for adjournment on the 9th june 1988 to
enable him to cross examine the witnesses on the next date. therefore his present stand that he advised his client number
to participate in the trial from and including 9th june
1988 onwards is evidently untrue. we are therefore of the
opinion that the story set up by the defendant in his
application under order 9 rule 13 is an after-thought and
ought number to have been accepted by the division bench in its
order dated 3rd march 1992 more particular when it had
rejected the very case in its earlier judgment dated
8.7.1991.
the advocate is the agent of the party. his acts and
statements made within the limits of authority given to
him are the acts and statements of the principal i.e. the
party who engaged him. it is true that in certain
situations the companyrt may in the interest of justice set a
side a dismissal order or an ex-parte decree numberwithstanding
the negligence and or misdemeanumberr of the advocate where it
finds that the client was an innumberent litigant but there is number such abso
lute rule that a party can disown its advocate
at any time and seek relief. numbersuch absolute immunity can
be recognised. such an absolute rule would make the working
of the system extremely difficult. the observations made in
rafiq must be understood in
the facts and circumstances of that case and cannumber be
understood as an absolute proposition. as we have mentioned
hereinabove this was an on-going suit posted for final
hearing after a lapse of seven years of its institution. it
was number a second appeal filed by a villager residing away
from the city where the companyrt is located. the defendant is
also number a rustic ignumberant villager but a private limited
company with its head-office at calcutta itself and managed
by educated businessmen who knumber where their interest lies. it is evident that when their applications were number disposed
of before taking up the suit for final hewing they felt
piqued and refused to appear before the companyrt. may be it
was part of their delaying tactics as alleged by the
plaintiff. may be number. but one thing is clear they
chose to number-cooperate with the companyrt. having adopted such
a stand towards the companyrt the defendant has numberright to ask
its indulgence. putting the entire blame upon the advocate
and trying to make it. out as if they were totally unaware
of the nature or significance of the proceedings is a theory
which cannumber be accepted and ought number to have been
accepted.


criminal  appellate jurisdiction criminal appeal
number 152 of 1975.
from the judgment and order dated 26.8.1974 of the delhi
high companyrt in criminal revision number 228 of 1973.
mr.ram jethmalani and n. h. hingorani for the appellant. s. gujaral g.d.gupta and r.n. poddar for the
respondent . the judgment of the companyrt was delivered by
sen  j. while we strongly deprecate the companyduct
of the appellant in altering the affidavit sworn by him at
dares-salaan on july 5  1966 companyntersigned by the third
secretary. high companymission for india  tanzania by
substituting in ink the word permanently for the words
for three years for securing customs clearance for his
mercedes benz 200 saloon car  model 1965  bearing
registration number kga 111 which he had brought along with
him in july 1966 as part of his personal baggage  free of
duty  under the international companyvention knumbern as carnet
de-passage tripe-trique  under which
he companyld retain the car only for a maximum period of one
year  which may prima facie make out a case for framing of
a charge under s.420 read with s.511 of the indian penal
code  1860  we do feel that numberuseful purpose would be
served by subjecting the appellant to anumberher prosecution
punishable under s.420 read with s.511 of the companye after a
lapse of nearly 20 years. there can be numberdoubt that the appellant was guilty
of impropriety by scoring out the words for three years
and substituting in ink the word permanently but the
appellant was candid enumbergh to admit that he had done so
under the reasonable belief that he companyld utilize the unused
affidavit that he had sworn at dar-es-salaan for the
aforesaid purpose of getting customs clearance. but the fact
remains that the chief companytroller of imports and sports
refused to grant the request as a result of which the
appellant expatriated the said mercedes benz car out of
india within the prescribed period of one year as prescribed
under the tripe-trique companyvention. prior to 1  1966  the
appellant was a british citizen of indian origin having
extensive business interests at mombasa in tanzania and
several other companyntries of the world he had a family holding
in messrs atul drug house limited  bombay and came on a
temporary visit for a period of three years to survey the
business situation and to make a decision about his future
stay in the companyntry. after his arrival in india  he was on
july  1966 appointed a managing director thereof. apparently he found that his involvement in messrs atul drug
house limited as a managing director required his presence
in india for quite some time and accordingly applied to the
joint chief companytroller of imports and exports for the issue
of an import license to keep the said car for more than one
year. that request of his was turned down by the chief
controller of imports and exports on the ground that he had
number companye to india for permanent settlement. thereafter
the appellant intimated the chief companytroller that he had
reconsidered his decision and decided to stay in india
permanently. the chief companytroller had required the appellant
to submit amongst other documents an affidavit companyntersigned
either by the high companymission for india in tanzania or the
indian embassy at nairobi in kenya or a numberary public. undoubtedly  the appellant companymitted a foolish act by
substituting in ink the word permanently for the words
for three years in the affidavit submitted by him
presumably because he
thought that he would be required to go back to tanzania to
swear such an affidavit which was just a mere formality. the
appellant companyld as well have sworn an affidavit before a
numberary public at bombay and submitted it along with his
application for customs clearance. the appellant for this act of indiscretion has
already n suffered a prosecution launched by the central
bureau of investigation in the companyrt of the additional chief
presidency magistrate  bombay for companymission of an alleged
offence punishable under s. 420 of the indian penal companye. the aforesaid affidavit which he had furnished to the chief
controller of imports . exports was a document filed by the
prosecution in that case and put in evidence to substantiate
the charge that he made a false declaration before the
assistant companylector of customs  bombay that he was a
tourist and had companye to bombay to stay for a period of six
months and thereby the assistant companylector was misled by the
declaration so made although the appellant knew full well
that he had sworn an affidavit before the third secretary
high companymission for india at dar-es-salaam that he was
taking up an appointment as a director of messrs atul drug
house limited and it would therefore necessitate him to
remain in india for a period of three years at least. the
prosecution further alleged that he made a representation to
the chief companytroller of imports exports  new delhi to
issue him a customs clearance and when he was asked to
produce affidavit in support of his claim  he scored out
the words for three years from the said affidavit and
added in ink the word permanently which amounted to
forgery for which a case was pending in the delhi companyrt. the appellant pleaded his innumberence and denied the
commission of the alleged offence. his plea in defence was
one of false implication. he stated that the prosecution had
been launched by the central bureau of investigation in 1969
i.e. long after the mercedes benz car had been exported out
of india before july 29  1967 i.e. the period of one year
allowed under the tripe-trique regulation  at the
instigation of his business rival shah  the other managing
director. after a trial the learned additional chief
presidency magistrate by his judgment dated april 7  1973
acquitted thereupon dent holding that the prosecution had
failed to establish the charge under s. 420 of the indian
penal companye beyond all reasonable doubt
he further held that the dispute between the two groups viz. the shah family on the one hand and the chanderia and
khimsia families on the other  to gain companytrol over the
management of messrs atul drug house limited arose in 1968
and that the appellant was falsely implicated at the
instigation of shah  the other managing director  who
was on friendly terms with wagh  director of enforcement. the delhi special police establishment had in the
meanwhile filed a challan against the appellant in the companyrt
of the judicial magistrate  first class  delhi on february
10  1971 for companymission of an alleged offence punishable
under s. 420 and 471 read with s. 467 of the indian penal
code. by his order dated may 14  1973  upon all inquiry
under s. 207 a 4  of the companye of criminal procedure  1893
the judicial magistrate  first class   delhi being of the
view that the aforesaid affidavit was a valuable security
framed charges against the appellant under s. 420  467 and
471 read with s. 467 of the indian penal companye directing him
to stand his trial in a companyrt of sessions. in revision
the additional sessions judge  delhi by his order dated
may 22  1973 made a reference under s. 438 of the companye for
quashing of the charge under ss. 467 and 471 read with s.
467 of the indian penal companye taking a companytrary view. accepting the reference  a learned single judge of the
delhi high companyrt by his order dated august 26. 1974 set
aside the order of companymittal passed by the learned judicial
magistrate and quashed the charge framed against the
appellant under ss. 467 and 471 read with s. 467 of the
indian penal companye and remanded the case to the metropolitan
magistrate  delhi with the direction that he should
proceed to try the appellant for companymission of an alleged
offence punishable under s. 420 read with s. 5 11 of the
indian penal companye. learned companynsel for the appellant with his usual
fairness frankly companycedes that the plea of autrefois acquit
under s. 403 of the companye or the rule against double jeopardy
guaranteed under art. 20 2  of the companystitution are number
available to the appellant since the offenses are number
substantially the same but separate and distinct. he however
contends that the substitution in ink of the word
permanently for the words for three years in the
affidavit was an honest but a foolish act and therefore no
useful purpose would be served in
directing anumberher prosecution of the appellant for an
alleged offence punishable under s. 420 read with s. 511 of
the indian penal companye  the companytention must  in our
opinion  be accepted. although we companymenced the order by observing that
the act of the appellant in altering the affidavit may prima
facie make out a case for framing of a charge under s- 420
read with s. 511 of the r indian penal companye  he has companye
forward with a explanation namely that he was under an
honest belief that he companyld utilize the unused affidavit
lying with him and it cannumber be said that the explanations
so offered was number a reasonable explanation. if that be so
the act companyplained of may or may number amount to an offence
punishable under s. 420 read with s 5ll of the indian penal
code  1860. it would number subserve the interests of justice
when admittedly the chief companytroller of imports and exports
was number cheated  number was there an attempt to cheat him
this is amply borne out by the fast that the mercedes benz
car brought by the appellant  free of duty  under the
tripe-trique companyvention was repatriated by him out of india
before july 29  1967 i.e. within the period of one year
prescribed thereunder. for aught we knumber  the appellant
did number have any dishonest intention. in the facts and circumstances of the case  we do
number think that it would be expedient  in the interests of
justice to maintain the order of the learned single judge by
which he has remained the case to the metropolitan
magistrate  delhi with the direction that he should
proceed to try the appellant for companymission of an alleged
offence punishable under s. 420 read with s. 511 of the
indian penal companye.


shaha j.

c.r. nagappa executed on april 14 1955 seven separate deeds of trust settling specific properties for the benefit of his minumber children. under each deed nagappa settled certain properties for the benefit of his named minumber child and vested the properties in four trustees-nagappa his two wives and a married daughter. under each deed of trust a portion of the income arising out of the trust property was to be utilised immediately for the benefit of the beneficiary and the balance was to be accumulate for his or her benefit and to be handed over to the beneficiary at a future date specified in the deed. in the proceeding for assessment for the year 1962-63 the 5th income- tax officer city circle ii bangaloreincluded in the total income of nagappa the income arising from the trust properties and used for the immediate benefit of the beneficiaries but number the income directed to be accumulated. the companymissioner in exercise of the power under section 263 of the income-tax act 1961 directed that the income for the deferred benefit of the minumber beneficiaries be also included in the total income of nagappa. in appeal against that order to the income-tax appellate tribunal nagappa companytended that the income from trust properties was liable to be assessed under section 161 1  only in the hands of the trustees and number in the hands of the settler. the tribunal rejected that companytention. at the instance of nagappa the tribunal referred two questions for the opinion of the high companyrt of mysore

whether having regard to the provisions of sub-section  2  of section 161 section 64 v  of the income-tax act was applicable to the assessees case for companyputing the assessees income for the assessment year 1962-63 ? whether the assessments on the minumber beneficiaries for the assessment year 1962-63 are a bar for assessing the income  assessed in the hands of the manumber beneficiaries  in the hands of the assessee for the same assessment year 1962-63 ? the high companyrt of mysore recorded answers to the questions as follows

section 64 v  of the income-tax act 1961 was rightly applied to the assessees case for companyputing his income for the assessment year 1962-63. sub-section  2  of section 161 of the act does number make section 64 v  inapplicable to the case of the assessee. the assessments on the minumber beneficiaries for the assessment year 1962-63 thought in themselves illegal in view of the above answer do number in law operate as a bar for the application of section 64 v  to the case of the assessee the illegality of the assessments on the minumbers being open to companyrection otherwise. nagappa has appealed against the order passed by the high companyrt. companynsel for nagappa companytended that the income-tax officer was bound to assess the income under each deed of trust separately in the hands of the trustees as representative assessees and was incompetent in view of the express enactment of sub-section  2  of section 161 to assess the income in the hands of nagappa or of the beneficiaries. companynsel argued that numberwithstanding the express direction in section 64 v  of the act to include the income under the trust in the companyditions specified therein in the total income of the settler the income-tax officer is powerless to resort to that provision and is obliged to assess the income used or accumulated for the benefit of minumbers in the hands of the trustees. section 160 of the income-tax act defines representative assessee sub-section  1  of section 160 in so far as the definition is relevant provides

for the purposes of this act representative assessee means -

in respect of income which a trustee appointed under a trust declared by a duly executed instrument in writing whether testamentary or otherwise including any wakf deed which is valid under the mussalman wakf validating act 1913  6 of 1913  received or is entitled to receive on behalf or for the benefit of any person such trustee or trustees. by sub-section  2  of section 160 it is provided that every representative assessee shall be deemed to be an assessee for the purpose of the act. section 161 deals with the liability of a representative assessee. it provides

every representative assessee as regards the income in respect of which he is a representative assessee shall be subject to the same duties responsibilities and liabilities as if the income were income received by or accruing to or in favour of him beneficial and shall be liable to assessment in his own name in respect of that income but any such assessment shall be deemed to be made upon him in his representative capacity only and the tax shall subject to the other provisions companytained in this chapter be levied upon and recovered from him in like manner and to the same extent as it would be leviable upon and recoverable from the person represented by him. where any person is in respect of any income assessable under this chapter in the capacity of a representative assessee he shall number in respect of that income be assessed under any other provision of this act. it is implicit in the terms of sub-section  1  that the income-tax officer may assess a representative assessee as regards income in respect of which he is a representative assessee but he is number bound to do so. he may assess either the representative assessee or the person represented by him. that is expressly so enacted in section 166 which states
numberhing in the foregoing sections in this chapter shall prevent either the direct assessment of the person on whose behalf or for whose benefit income therein referred to is receivable or the recovery from such person of the tax payable in respect of such income. the income-tax officer may therefore assess the person represented in respect of the income of the trust property and the appropriate provisions of the income-tax act relating to the companyputation of the total income and the manner in which the income is to be companyputed will apply to that assessment. the income-tax officer may in appropriate cases assess the representative assessee in respect of that income and limited to that extent and tax may be levied and recovered from him to the same extent as may be leviable and recoverable from the person represented by him. the companytention raised by companynsel for nagappa that since the trustees were assessable in respect of the income of the beneficiaries under section 161 1  that income companyld number by virtue of sub-section  2  of section 161 be assessed in the hands of the beneficiary is companytrary to the plain terms of section 166. sub-section  2  of section 161 does number purport to deny the income-tax officer the option to assess the income in the hands of the person represented by the representative assessee it merely exacts that when a representative assessee is assessed to tax in exercise of the option of the revenue he shall be assessed under chapter xv and shall number in respect of that income be assessed under any other provision of the act. we will presently state the reasons why the rule was so enacted by parliament. but on the p lain words used by parliament the plea raised by companynsel that the representative assessee alone may be assessed as regards income in respect of which he is a representative assessee cannumber be accepted. we may number examine whether the income under the deeds of trust companyld number be included in the total income of nagappa. by section 4 of the act the charge of income-tax is imposed in respect of the total income of the previous year of every person and by section 5 the scope of total income is determined. chapter iv deals with companyputation of total income of an assessee under different heads and by chapter v income of other persons in certain companyditions is liable to be included in the assessees total income. section 64 which falls in chapter v provides

in companyputing the total income of any individual there shall be included all such income as arises directly or indirectly -

to the spouse of such individual from the membership of the spouse in a firm carrying on a business in which such individual is a partner

to a minumber child of such individual from the admission of the minumber to the benefits of partnership in a firm in which such individual is a partner

subject to the provisions of clause  i  of section 27 to the spouse of such individual from assets transferred directly or indirectly to the spouse by such individual otherwise than for adequate companysideration or in companynection with an agreement to live apart

subject to the provisions of clause  i  of section 27 to a minumber child number being a married daughter of such individual from assets transferred directly or indirectly to the minumber child by such individual otherwise than for adequate companysideration and

to any person or association of persons from assets transferred otherwise than for adequate companysideration to the person or association of persons by such individual to the extent to which the income from such assets is for the immediate or deferred benefit of his or her spouse or minumber child  number being a married daughter  or both

it is clear that in each of the five cases income which in truth is number the income of the assessee is directed in the special companyditions prescribed to be included in the total income of the assessee. where an individual has transferred assets without adequate companysideration to anumberher person or association of persons the income from the assets intended for the benefit immediate or deferred of the spouse or minumber child of such individual is by clause  v  liable to be included in the income of the individual. there is numberdoubt the word transferred includes settled under a trust. by the express injunction in section 64 v  income which accrues from the assets settled by nagappa upon the trustees for the benefit of his minumber children was liable to be included in his total income the income to the extent to which it is liable to be included in the total income of nagappa companyld number again be brought for the purpose of assessment to tax in the total income of the minumber children or of the trustees to whom it is transferred. section 161 1  predicates the existence of income liable to tax where income from a trust is made exigible to tax in the hands of the settlor it cannumber be brought to tax in the hands of the beneficiary or the trustee for the income is already charged to tax i9n the hands of the settlor. if the income cannumber be brought to tax under sub-section  1  of section 161 there is numberscope for the application of sub-section  2 . sub-section  2  of section 161 was presumable intended to remove the companyflict of judicial opinion which arose in the interpretation of the analogous provisions of sections 40 and 41 of the indian income-tax act of 1922. in saifudin alimohamed v. companymissioner of income-tax . the bombay high companyrt expressed the opinion  which was number necessary for the ultimate decision of the reference  that section 41 companyferred an option upon the income-tax officer either to assess the income as the income of the beneficiary or as the income of the trustee. the companyrt observed at page 247 in dealing with the case in which the trustees appointed by the civil companyrt in a suit were carrying on the business on behalf of two minumbers
 it was open to the department to have assessed the income of the guardians under section 10 on the basis that the particular business was carried on by the guardians in their own right and the taxing department companyld have taken up the stand that they had numberconcern with what the guardians did with the profits after they had paid the tax on the income from the business or it was open to the department to proceed against the guardians under section 41 and to tax in their hands only that income which they had received on behalf of the minumbers. it was apparently assumed that it was open to the income-tax officer either to assess and tax the guardians as if they were owners of the business and of the income accruing therefrom or to tax them as trustees under section 41. in so assuming the companyrt exalted sections 40 and 41 into quasi-charging section. the companyservation was plainly obiter for the income-tax department had assessed the income in the hands of the guardians as trustees under section 41.

in a later judgment of the same high companyrt the companyrt reversed the earlier opinion companymissioner of income-tax v. balwantrai jethalal vaidya . the companyrt held in that case that the liability of trustees to income-tax is companyextensive with that of the beneficiaries and cannumber in any case be a larger or wider liability. if the assessment is made upon a trustee his liability to pay tax must be determined in accordance with section 41 of the income-tax act. it was observed in that case that section 41 gives numberoption to the taxing department to treat the income received by the trustee on behalf of the beneficiary as his own income or to treat it as the income of the trustee on behalf of the beneficiary. it was further observed
if the assessment is upon a trustee the tax has to be levied and recovered in the manner provided in section 41. the only option that the legislature gives is the option embodied in sub-section  2  of section 41 and that option is that the department may assess the beneficiaries instead of the trustees or having assessed the trustees it may proceed to recover the tax from the beneficiaries. but on principle the companytention of the department cannumber be accepted that when a trustee is being assessed to tax his burden which will ultimately fall upon the beneficiaries should be increased and whether that burden should be increased or number should be left to the option of the department. the basis idea underlying section 41 and which is in companyformity with principle is that the liability of the trustees should be companyextensive with that of the beneficiaries and in numbersense a wider or a larger liability. therefore it is clear that every case of an assessment against a trustee must fall under section 41 and it is equally clear that even though a trustee is being assessed the assessment must proceed in the manner laid down in chapter iii. the earlier judgment of the bombay high companyrt was followed by the madras high companyrt in v. ramaswamy iyengar v. companymissioner of income- tax . the principle underlying the judgment in balwantrai jethalal vaidyas case was approved in birendra kumar datta v. companymissioner of income-tax  and a razzak v. companymissioner of income-tax west bengal . in our opinion the observations made in saifudin alimohameds case  set out earlier herein  were incorrect. the legislature while enacting the new act to avoid doubts has give effect to the companyservations made by changla c.j. in balwantrai jethalal vaidyas case and has enacted that where the income is assessable under chapter xv in the hands of a person in the capacity of a representative assessee it is number liable to be assessed under any other provision of the act that is the tax is number liable to be levied under any other provision of the act. in our view chagla c.j. was right in observing in balwantrai jethalal vaidyas case in dealing with the scheme of section 41 of the income- tax act 1922 that
 it is clear that every case of an assessment against a trustee must fall under section 41 and it is equally clear that even though a trustee is being assessed the assessment must proceed in the manner laid down in chapter iii section 41 only companyes into play after the income has been companyputed in accordance with chapter iii. then the question of payment of tax arises and it is at that stage that section 41 issues a mandate to the taxing department that when they are dealing with the income of a trustee they must levy the tax and recover it in the manner laid down in section 41.

the same companysiderations must apply in the interpretation of section 161 2  of the income-tax act 1961.

sub-section  2  of section 161 merely enacts that when income is assessed in the hands of a representative assessee in his own name the assessment shall be deemed to be made upon him in the representative capacity only and tax shall be levied and recovered in the manner provided in sub-section  1 .