# Bose}. .Ha;· 12. 1S54 Kishan Lal and AM•"" v. B/,anwar Lal

- **Citation:** [1955] 1 S.C.R. 439
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** Civil Appeal No. 88 of 1953
- **Bench:** Mehr Chand Mahajan C.J, MuKHERJEA, VIVIAN BosE, Bhagwati, Venkatarama Ayyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bose-ha-12-1s54-kishan-lal-and-am-v-b-anwar-lal-398
- **Pages:** 10

## Headnote

Indian Contract Act (IX of 1872), s. 222-Contract of agency
-Agent's right of indemnity against principal-Whether hit by the
notification prohibiting forward contracts of purchase and sale of
bullion.
The
respondent '" principal
entered
into
several forward
contracts for the
purchase and sale of bullion through the appellant's firm at Indore who worked as
commission agents for the
respondent.
The transactions resulted in a loss and the appellants
who had to pay the amount of loss to third parties on behalf of
the respondent as the agents brought the suit for recovery of the
amount in
the
Court in Jodhpur where the respondent resided.
It was pleaded by the respondent that according to the law prevalent there as contained in the notification of the Marwar Government dated the 3rd June, 1943, all forward
business contracts in
bullion in which the date fixed for delivery exceeded 12 days were
Virendra ,)'ing/,
and Ot..er.r
v.
The State of Uttar
Pn·des/J.
Bose}.
.Ha;· 12.
1S54
Kishan Lal and
AM•""
v.
B/,anwar Lal,
440
SUPREME COURT REPORTS
[1955]
illegal and therefore a suit on the basis of these transactions was
not xnaintainable.
Held, that the suit was really not one to enforce any contract
relating to the
purchase
or sale
of bullion
which comes
within
the prohibition of the notification but was one by an agent claim·
ing indemnity against
the principal
for
the loss
which the agent
had suffered in carrying out the directions
of
the_ principal.
The
right to such indemnity was founded
on the statutory
provision
contained in section 222 of the Indian Contract
Act and the acts
of payment made by the plaintiffs on behalf of the defendant were
lawful acts
as
all the
transactions took place and the payments
\Vere n1ade outside Marwar and therefore the suit was not hit by
the notification.
C1v1L
APPELLATE
JURISDICTION :
Civil
Appeal
No. 88 of 1953.
Appeal under article 132(1) of the Constitution of
India from the Judgment and Order dated the 11th
September, 1951, of the High Court of Judicature for
the State
of
Rajasthan
at
Jodhpur in D. B.
Civil
Appeal (Ijlas-i-Khas) No. 6 of 1950.
H.
/.
Umrigar,
Narain
Andley
and Rajinder
Narain for the appellants.
Radlzey Lal Aggarwal and B. P. Malzeswari, for
the respondent.
1954.
May
12.
The Judgment of the Court was
delivered· by
MuKHERJEA J.-This appeal is on behalf of the
plaintiffs and has come before us on a certificate granted
bv the High Court of Rajasthan, under article 132(1)
of the Constitution, on the ground that· the case involves a substantial question of law as to the interpretation of the
Constitution. The appellant has also put
in a petition praying for leave to urge other grounds
on the merits of the case.
The suit, out of which this appeal arises, was brought
by the appellants,
as plaintiffs, on the
16th
August,
1946, in the District Court I at J odhpur in Rajasthan
against
the
defendant respondent,
claiming to recover
from the latter a sum of Rs. 10,342 annas odd together
with interest and costs.
The plaintiffs, at all material
times, carried on the business of commission agents
both at Indore and Jodhpur under the name and style
-
--
< ..
S.C.R.
SUPREME COURT REPORTS
441
of "Kanmal
Kishenmal"
and "Kanmal Surajmal"
respectively and their case is
that between September
:and December, 1945, the defendant entered into several
forward contracts for the purchase and sale of bullion
through the plaintiffs' firm at Indore. These transactions proved unprofitable to the defendant and except
a small profit of Rs.
103 annas odd which one of these
transactions fetched, every one of the rest ended in loss
and the loss aggregated to a sum· of Rs. 21,423-1-6 pies.
It is averred in the plaint that this entire amount was
paid to third parties at Indore by the plaintiffs on
behalf of the defendant and that the plaintiffs received,
in all, a sum of Rs. 11,457-8-0, which the defendant
paid from time to time, towards these losses,
to the
plaintiff's firm at Jodhpur. The plaintiffs were therefore ent

## Text

• -
-
S.C.R.
SUPREME COURT REPORTS
439
It was not denied that if the present action of the
State cannot be defended as an act of State it cannot
be saved
under any
provision of law. Whether the
State would have the right to set aside these grants in
the ordinary Courts of the land,
or
whether it can
deprive the petitioners of these properties by legislative
process, is a matter on which we express no opinion,
It is enough to say that its present action cannot be
defended. Article 31 ( 1)
of the Constitution is attracted
as also article 19(f). The pet1t1oners are
accordingly
entitled to a writ under article 32(2). A writ will
accordingly
issue
restraining
the
State
of
U tta r
Pradesh from. giving efl:ect to the orders complained of
and directing it to restore
possession to the petitioners
if possession has been taken.
The petitioners will be paid their costs by the State
of Uttar Pradesh. The intervener will bear its own.
Writ allowed.
KISHAN LAL AND ANOTHER
ti.
BHANW AR LAL.
[MEHR CHAND MAHAJAN C.J., MuKHERJEA,
VIVIAN BosE, BHAGWATI and
VENKATARAMA AYYAR JJ.]
Indian Contract Act (IX of 1872), s. 222-Contract of agency
-Agent's right of indemnity against principal-Whether hit by the
notification prohibiting forward contracts of purchase and sale of
bullion.
The
respondent '" principal
entered
into
several forward
contracts for the
purchase and sale of bullion through the appellant's firm at Indore who worked as
commission agents for the
respondent.
The transactions resulted in a loss and the appellants
who had to pay the amount of loss to third parties on behalf of
the respondent as the agents brought the suit for recovery of the
amount in
the
Court in Jodhpur where the respondent resided.
It was pleaded by the respondent that according to the law prevalent there as contained in the notification of the Marwar Government dated the 3rd June, 1943, all forward
business contracts in
bullion in which the date fixed for delivery exceeded 12 days were
Virendra ,)'ing/,
and Ot..er.r
v.
The State of Uttar
Pn·des/J.
Bose}.
.Ha;· 12.
1S54
Kishan Lal and
AM•""
v.
B/,anwar Lal,
440
SUPREME COURT REPORTS
[1955]
illegal and therefore a suit on the basis of these transactions was
not xnaintainable.
Held, that the suit was really not one to enforce any contract
relating to the
purchase
or sale
of bullion
which comes
within
the prohibition of the notification but was one by an agent claim·
ing indemnity against
the principal
for
the loss
which the agent
had suffered in carrying out the directions
of
the_ principal.
The
right to such indemnity was founded
on the statutory
provision
contained in section 222 of the Indian Contract
Act and the acts
of payment made by the plaintiffs on behalf of the defendant were
lawful acts
as
all the
transactions took place and the payments
\Vere n1ade outside Marwar and therefore the suit was not hit by
the notification.
C1v1L
APPELLATE
JURISDICTION :
Civil
Appeal
No. 88 of 1953.
Appeal under article 132(1) of the Constitution of
India from the Judgment and Order dated the 11th
September, 1951, of the High Court of Judicature for
the State
of
Rajasthan
at
Jodhpur in D. B.
Civil
Appeal (Ijlas-i-Khas) No. 6 of 1950.
H.
/.
Umrigar,
Narain
Andley
and Rajinder
Narain for the appellants.
Radlzey Lal Aggarwal and B. P. Malzeswari, for
the respondent.
1954.
May
12.
The Judgment of the Court was
delivered· by
MuKHERJEA J.-This appeal is on behalf of the
plaintiffs and has come before us on a certificate granted
bv the High Court of Rajasthan, under article 132(1)
of the Constitution, on the ground that· the case involves a substantial question of law as to the interpretation of the
Constitution. The appellant has also put
in a petition praying for leave to urge other grounds
on the merits of the case.
The suit, out of which this appeal arises, was brought
by the appellants,
as plaintiffs, on the
16th
August,
1946, in the District Court I at J odhpur in Rajasthan
against
the
defendant respondent,
claiming to recover
from the latter a sum of Rs. 10,342 annas odd together
with interest and costs.
The plaintiffs, at all material
times, carried on the business of commission agents
both at Indore and Jodhpur under the name and style
-
--
< ..
S.C.R.
SUPREME COURT REPORTS
441
of "Kanmal
Kishenmal"
and "Kanmal Surajmal"
respectively and their case is
that between September
:and December, 1945, the defendant entered into several
forward contracts for the purchase and sale of bullion
through the plaintiffs' firm at Indore. These transactions proved unprofitable to the defendant and except
a small profit of Rs.
103 annas odd which one of these
transactions fetched, every one of the rest ended in loss
and the loss aggregated to a sum· of Rs. 21,423-1-6 pies.
It is averred in the plaint that this entire amount was
paid to third parties at Indore by the plaintiffs on
behalf of the defendant and that the plaintiffs received,
in all, a sum of Rs. 11,457-8-0, which the defendant
paid from time to time, towards these losses,
to the
plaintiff's firm at Jodhpur. The plaintiffs were therefore entitled to the balance of Rs. 9,861 which together
with interest came up to Rs. 10,342 and this was the
daim laid in the plaint.
The suit was transferred from the District Court to
the Original Side of the High Court at Jodhpur and the
<lefendant filed his written statement in the High Court
on the 27th October, 1947. The defence was a complete
denial of the plaintiffs' claim and it was
contended
inter alia that the transactions in suit amounted to
wagering contracts and according to the law prevalent
in Marwar, as contained in the notification of the
Marwar Government dated the 3rd June, 1943, all
forward
business contracts in
bullion, in which
the
date fixed for delivery exceeded 12
days, were illegal
and were punishable as criminal offences. No suit
was
therefore
maintainable
on
the basis
of these
~
transactions.
On these pleadings a number of issues were raised of
which issue No. 5 stood thus:
"Are the transactions in dispute in the suit illegal
and the present suit in respect of these transactions is
not maintainable on account of the notification dated
3rd June, 1943 ?"
The suit came up for hearing before a single Judge
of the Jodhpur High Court sitting on the Original Side.
No evidence was adduced by the parties and the case
'S54
Kishan' Lal and
Another
v.
Bhanwar Lal.
Mukherjea J.
1954
Kis .an I.al and
Anrth~
v,
B.'.anwar Lal.
.\ful;r,erjea J.
442
SUPREME COURT REPORTS
[1955]
was heard only on issue No. 5 which was treated as an
issue on a pure question of law. It was held by th<"
learned Judge that, as it was admitted by the plaintiffs
that the contracts to which the suit related covered a
period exceeding 12 days, they came within the prohibition of the notification referred to above and a suit
based upon them was not maintainable in law. The
judgment shows that a contention was raised on behalf
of the plaintiffs that the notification was confined only
to contracts made in Marwar or intended to be performed in that place, and as the contracts in suit were all
entered into at Indore, they could not be hit by the
notification. This argument was repelled by the learned
trial judge on a two-fold ground. It was said in the
first place that as the suit was actually brought in the
Jodhpur Court, the plaintiffs could not avoid facing the
notification and the Jodhpur Court could not give them
a relief in violation of its own laws. The other reason
assigned was based upon section 13 of the Civil Procedure Code and it was said that if the plaintiffs could
and did get a decree on the basis of these transactions
in the Indore Court and wanted to enforce the same as
a foreign judgment in the Court of Jodhpur, the latter
would be justified in refusing to give effect to such
judgment under section 13 of the Marwar Civil Procedure Code, on the ground that such judgment was
founded on a breach of law in force in Marwar. In this
view the learned Judge, by his judgment dated the 2nd
March, 1948, dismissed the plaintiffs' suit.
The plaintiffs thereupon took an appeal, against this
judgment, to the Appeal Bench of the Jodhpur High
Court and the appeal was heard by a Division Bench
A
consisting of N awal Kish ore C. J. and Kanwar Amar
Singh J. The learned Judges accepted the legal position taken up by the plaintiffs, that the contracts could
be void only if they were entered into at Marwar or
were intended to be performed, either wholly or partly,
at Marwar.
Admittedly they were entered into at
Indore outside Marwar, but the learned Judges
held
that from the fact that certain payments were made
by the defendant and accepted by the plaintiffs towards
.i,
these conuacts at Marwar, it could be inferred that it
)'
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-
>
S.C.R.
SUPREME COU:R.T REPORTS
443
was a term of the contracts that they would be
performed at Marwar. Another point raised on behalf
of the
plaintiffs, that as the notification of 3rd June,
1943, itself came to an end by efflux of time on the
30th September, 1946, there was no obstacle in the way
of the plaintiff's obtaining a decree at any time after
that, was repelled by the learned Judges on the ground
that as the contracts themselves were illegal, at the
time when they were entered into, by reason of their
violating the provisions of the notification, the fact
that · the notification subsequently ceased to be operative
could not make the illegal contracts lawful. The result
was that by its judgment dated the 24th Septembef,
1948, the appellate bench of the High Court dismissed
the appeal.
The plaintiffs thereupon with the leave of the Court
took an appeal against this decision to the Ijlas-i-Khas of
the State of Jodhpur as it then existed. While the appeal
of the plaintiffs was pending before the Ijlas-i-Khas of
the Jodhpur State, the integration of the various States
of Rajasthan took place and the United States of Rajasthan was formed on the 7th of April, 1949. The Rajasthan
High Court Ordinance was promulgated by the Rajpramukh of Rajasthan on the 21st June, 1949, and on
the 29th of August following, the High Court of Rajasthan was constituted. Another Ordinance known as
the 'Rajasthan Appeals and Petitions (Discontinuance)
Ordinance, 1949' provided, by section 4,
that pending
appeals before the Ijlas-i-Khas of any of the covenanting States if they related to judicial matters were to be
heard by a special Court to be constituted by the
:i., Rajpramukh. This section was amended by an amending Ordinance dated the 24th of January, 1950, and all
these pending appeals were directed to be heard and
disposed of by the Rajasthan High Court established
under the Rajasthan High Court Ordinance of 1949.
In accordance with this provision the appeal of the
plaintiffs was transferred to the High Court of
Rajasthan for disposal. The
Constitution of India came
into force on the 26th of January, 1950, and when the
_;., appeal came up for hearing before the Rajasthan High
Court a preliminary point was raised as to whether the
I0-87 S. C. India/59
1954
Kishan Lal and
Another
v.
Bhanwar Lal.
Mukheljea].
1954
K ishan Lal and
.Another
v.
Bhanwar Lal.
Muklurjta J.
'
444
SUPREME COURT REPORTS
[1955]
appeal should not be transferred to the Supreme Court
for disposal under article 374( 4) of the Constitution.
The matter was referred for consideration by a Full
Bench, and the Full !3ench decided that article 374(4)
of the Constitution had no application to the present
case and the appeal was to be heard by the High Court
of Rajasthan. The appeal was then
placed for hearing
before a Division- Bench of the Rajasthan . High Court
and by their . judgment dated the 11th of September,
1951, the learned
Judges dismissed
the
appeal and
affirmed the
decision
of
the Courts below.
Against
this judgment the plaintiffs got leave to file an appeal
to this Court under article 132(1) of the Constitution
and that is how the matter has come before us.
The only constitutional point involved in the appeal
is whether article 374( 4) of the Constitution is attracted "'
to the facts of the present case and whether the appeal
should therefore. have been transferred to this Court
for disposal instead of being heard and disposed of by
the Rajasthan High Court. In view of the fact that
we have acceded to the prayer of the appellants and
have granted them leave to urge other grounds relating
to the merits of the case in support of the appeal, this
constitutional
point
has
nothing but an
academic
importance and is not pressed by the appellants. We
would therefore proceed to consider the points upon
which the learned counsel for the appellants has attempted to assail
the propriety of the decision of Rajasthan
High Court on its merits.
The learned Judges of the Rajasthan High Court took
the view, and it seems to us quite properly, that the
Courts below were not right in treating issue No. 5 as ''-
raising a pure question of law where no investigation
·Of facts was necessary. The High Court has pointed
·Out that the ·defendant while raising the plea of illegality of the contracts in his written statement, nowhere
alleged that the contracts were entered into at Marwar
·Or were intended to be performed there. .On the other
hand the plaintiffs expressly averred that the contracts
were made at Indore. The one fact from which the
appeal bench of the Jodhpur High Court drew the conA
dusion
that
the
contracts
were
intended
to
be
S.C.R.
SUPREME COURT REPORTS
445
performed, partly at least, at Marwar, was that certain
payments t_gwards the lossess resulting from the transactions were made by the defendant to the plaintiffs'
firm at Marwar. This, as the Rajasthan High Court
points out, does not necessarily lead to the inference
that it was a part of the original agreement entered
into by the parties, that the performance was to be
--i-,
made at Marwar. The payments
might have been
made, as a matter of convenience, upon express instructions from the Indore firm. It is also pointed out that
if the general principle of law is that it is the debtor
who has to seek the creditor, as the defendant ranked
here as a debtor by reason of the losses suffered in the
business, it was for him to seek the plaintiffs at Indore
_;.
and not for the plaintiffs to seek him at Jodhpur. The
suit, it is to be further noted, was brought at Jodhpur
only on the allegation that the defendant resided within its jurisdiction. There was no averment in the plaint
that any part of the cause of actiQll
arose within its
jurisdiction.
On all these grounds the Rajasthan High Court was
of opinion that the Courts below should have either
"'
framed a specific issue on facts or if they thought that
issue No. 5 was sufficiently wide to cover the question
of fact as well, they should have given an opportunity
to the parties to lead evidence for arriving at a finding
whether the contracts were to be performed in whole
or in part in Marwar. The learned Judges themselves
were inclined to send the case back, on remand, in
order that evidence might be adduced on this point.
But they did not take this step as they were told that
l.c the contracts were entered into by telegrams and no
terms of any sort were settled between the parties, it
being understood that the business was to be conducted
according to the custom and usage of the market.
The · learned Judges further discussed a question of
Private International Law, apparently raised on behalf
of the defendant, that even if the contract was made outside Marwar and not intended to be performed there,
still the Court of Marwar should refuse to enfor.ce the
->
contract as it was illegal according to the lex fori, that
is to say the law of the place where the suit was brought.
1954
Kish an• Lal and
Another
v.
Bhanwar Lal.
Mukherjea ].
1954
1 .Irishan Lal and
Another
v.
Bhanwar Lal.
Mukhetjea J.
446
SUPREME COURT REPORTS
[1955}
This contention of the defendant was not accepted and
it was held that if the contract was enforceable by the
law of the place where it was made or where it was to
be performed, it could not be held unenforceable in
Jodhpur on the ground of its being opposed to public
policy as the prohibition in the notification was not
general in its nature and the contract in question .cannot be said to be opposed to any basic ideas of morality
or public policy.
After saying all these however,
the
learned Judges of the Rajasthan High Court dismissed
the suit on the short point that even if the sale or purchase under the contracts might have taken place
outside Marwar yet the notification not only hit the
contracts
of sale
and
purchase but the contract
of
agency itself relating to such transactions. It is
said
then that in the case of Pakki Adat, primarily the place
of payment of profit is the place where the constituent
resides and in the present case the plaintiffs had alleged themselves to be J'akka Adatias. Consequently the
agency contract would be hit by the notification as it
was to be performed at Jodhpur where the defendant
lives.
W c do not
think
that the
learned
Judges'
approach to the case · has been a proper one or that the
reasoning adopted by them can be accepted as sound.
By the notice of 3rd June, 1943, an additional rule,
namely, rule No. 90( c) was added to the
Defence of
India Rules as applied to Marwar. Sub-rule (2) of
rule 90( c) laid down that no person shall enter into
forward contract or option in bullion. In sub-rule (1)
"forward .contract" was
defined
to mean 'a contract
for delivery of bullion at a future date, such date
being later than 12 days from the date of the contract' ;
,i
and a "contract"
\Vas
defined
to
mean
'a
contract
made or to be made or to be performed in whole or in
part in Marwar relating to the sale or purchase of bullion.' The present suit" is really not one to enforce
any contract relating to purchase or sale of bullion
which comes within the prohibition of this notification.
It is a suit by an agent claiming indemnity against the
principal, for the loss, which the agent had suffered, in
carrying out the directions of the principal. The right
to such indemnity is founded on the statutory provision
•
+
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-
S.C.R.
SUPREME COURT REPORTS
447
contained in section 222
of the Indian Contract Act
which stands as follows :
"The employer of an agent is bound to indemnify
him against the consequences of all lawful acts done
by such agent in exercise of the authority conferred
upon him."
Here the plaintiffs paid the losses resulting from the
transactions to third parties, · on behalf of the defendant, in exercise of the authority conferred upon th(:m
by the latter. These acts of payment were certainly
lawful acts if we assume, as indeed we must, that all
these
transactions took place and the
payments were
made outside Marwar. It is the statutory right which
flows from the contract of agency that the plaintiffs
are seeking to enforce against the defendant and the
suit has been brought in the Jodhpur Court as the
defendant resides
within that jurisdiction. The fact
that in case of Pakki Adat the place of payment is normally where
the constituent resides
is immaterial for
our present purpose.
A contract
for sale or purchase
of bullion may be' entered into by and between the
parties directly or it may be made through agents. In
either case if such contract is not entered into at Marwar, nor is it agreed to be performed wholly or in part
in Marwar, it would be outside the notification and
cannot be held to be illegal. The fallacy in the reasoning of the learned Judges lies in the fact that the
contract between principal and agent, which is entirely
collateral to the contract of purchase and sale, has been
held ·by them as coming within the prohibition of the
notification merely on the ground that payment, by the
agent to the principal, of the profits of the transaction
could be made or demanded at the place where the
principal resides. In our opinion the right to indemnity, which is an incident of the contract of agency, is
not hit by the notification at all and is a matter which
is entirely collateral to a forward contract of purchase
atid sale of bullion which the notification aims at prohibiting. We hold therefore that the Courts were not
right in dismissing the plaintiffs' suit on the ground
that the contracts upon which the suit was based were
illegal by reason of their contravening the provisions
1954
Kishan Lal and
Another
v.
Bhanwar Lal4
Mukherjea].
1954
Kishan !Al and
Anotht1
v.
iBJianwar Lal.
Mr1/du:~ita J.
•954
Atay 28.
448
SUPREME COURT REPORTS
[19551
of the notification. The result is that we set aside the
judgments of the Courts below and send the. case back
to the Original Court of Jodhpur in order that it may
be tried on all the other issues raised in the suit after
giving opportunity
to the
parties
to adduce such
evidence as they want ,to adduce. The plaintiffs appellants will have their costs up to this stage. Further
costs will abide the resu It.
Order accordingly.
SURAJ MALL MORTA AND CO.
ti.
A. V. VISVANA THA SASTRI AND ANOTHER.
[MEHR CHAND MAHAJAN C.J., s. R. DAS, VIVIAN
BosE, BHAGWA11 and VENKATARAMA AYYAR JJ.]
Taxation on l11r.rnne
(Investigation
Cotnmission)
Act (XXX
of 1947) ss. 5(1), 5( 4)~Extent aad range different-S. 5( 4) and
s. 34 of Indian Income-tax Act (XI of 1922)-Deal tvith same class
of
persons-Properties
and
characteristics
the
san1e-Procedure
under the ttvo Acts diffi:rent-Section 5( 4)-lf1hether
ultra
vires
Art. 14 of the Constitution.
-+
Sub~section ( 4)
of
section 5
of the
Taxation on
Income
(Investigation Com1nission) Act, 1947, does not deal 'vith the same
class of persons as are said to have been grouped together in subsection ( l) of ~section 5 of the Act as persons \Vho to a substantial
extent eyaded payment of taxation on income. On a plain reading
of the section it is
clear that sub-section ( 4) of section 5 is not
limited only to persons \\'ho made extraordinary profits and to all
persons who 1nay have evaded payment of taxation on
income
irrespective of \Vhethcr
the
evaded
profits
are
substantial
or
insubstantial and therefore the scope of sub-section ( 4)
of section 5 .A.
is different from the scope of sub-section ( 1) of
section 5 both in
extent and range ..
Sub-section ( 4) of section 5 of the Act, obviously
deals
\Vi th
the same class of persons who fall within the arnbit of section 34
of the Indian Incotne-tax
Act an<l are de.1lt with in sub-section (1)
of that section and \Vhose inco1ne can be caught by
the proceeding
under that section.
It is not possible to hold that
all such
pc·rsons \Vho evaded
payment of income-tax and do not
truly
disclose
all particulars A
or material facts
necessary for their assessment an<l against whom
a report is made undef sub-section ( 4) of section 5 of the impugned
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