D. P. Wadhwa, J. - (1.) Commissioner of Income-tax, Bhubaneshwar and Union of India, Ministry of Finance have filed this appeal against the judgment dated October 24, 1994 of the Orissa High Court which the High Court dismissed their revision and affirmed the order of the subordinate Court rejecting the plea of the Revenue that a suit for partition filed by the first respondent was not maintainable in view of the bar of in Section 293 of the Income-tax Act, 1961 (for short, the 'Act').
(2.) Respondent No. 1, as the plaintiff, filed a suit for partition against 7 defendants, defendants 6 and 7 being respectively Union of India through Finance Secretary and Commissioner of Income-tax, Orissa, now the appellant before us. Defendants 1 and 2 are step-brothers and defendants 3 to 5 are step-sisters of the plaintiff. Plaintiff said that she was the daughter of Bansidhar Agarwal from his first wife, while defendants 1 to 5 were the children of Bansidhar Agarwal from his second wife. Defendant No. 1 is Babulal whose residential and business premises were subjected to search and seizure operation under Section 132 of the Act and various assets including certain gold ornaments, subject-matter of the suit filed by the plaintiff, were seized. In the suit the plaintiff had prayed for partition of those very gold ornaments. Plaintiff said that her mother died in 1938 and that at that time she was possessed of 200 tolas of gold ornaments which was her stridhan. Her mother made a will bequeathing gold ornaments to the plaintiff and other children of Bansidhar from his second wife in proportion to number of daughters of each of such children to meet the dowry demand and marriage requirements of their daughters. These ornaments were kept in the custody of father of the plaintiff who died on February 10, 1990. After his death the ornaments came in the custody of Babulal Agarwal, the first defendant. The family decided to partition the ornaments. At that time there were 14 grand-daughters who were the daughters of the plaintiff and defendants 1 to 5. Since the plaintiff had 5 daughters, she was entitled to 5/14th share in the ornaments. But before the partition could take place, Income-tax Officer raided the house of the first defendant on March 23, 1990 and seized those gold ornaments which weighed 2128 gms. along with other assets. Plaintiff said that she filed a petition before the Income-tax Officer for return of the ornaments but he refused. The plaintiff then issued a notice to the Commissioner of Income-tax, Orissa, defendant No. 7, who, it is alleged, assured her that justice would be done to her claim and had stated that her case would be disposed of within three months. Nothing happened in spite of the reminders and no decision was taken. This gave cause of action to the plaintiff. She served a notice under Section 80 of Code of Civil Procedure on defendants 6 and 7 and thereafter filed the suit.
(3.) From the facts, it is quite obvious that the plaintiff would not have filed the suit for partition as there was no dispute to her claim by other relatives but for the fact that gold ornaments were then in the custody of the Income-tax Department. Notices of the suit were served on defendants 6 and 7. They filed an application in the Court on August 7, 1992 challenging the very maintainability of the suit in view of Section 293 of the Act. This Section is as under: "293. Bar of suits in Civil Courts.- No suit shall be brought in any Civil Court to set aside or modify any proceeding taken or order made under this Act, and no prosecution, suit or other 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." ;