The judgment of the was the court was delivered by
RANGARAJAN J. - The short, but interesting, question that arises for decision in this income-tax reference is whether income-tax due from the assessee which could not be recovered summarily under section 231 of the Income-tax Act, 1961 (hereinafter called "the act"), can be recovered by way of penalty. The reference was made in the following terms :
"Whether, on the facts and in the circumstances of the case, the Tribunal was justified in cancelling the penalties imposed by the Income-tax Officer under section 221(1) of the Income-tax Act, 1961, relating to the assessment years 1960-61, 1961-62, 1962-63, 1963-64, 1964-65 and 1965-66, against the assessee, M/s. Shyam Sunder Tea Co. Private Ltd. ?"
Only a few facts, which are necessary for disposing of this reference, may be noticed :
It is seen from annexure "A" that the Income-tax Officer, Collection, Dibrugarh Circle, Dibrugarh, passed an order under section 221 of the Act as follows :
"M/s. Shyam Sunder Tea Co. (P.) Ltd., whose registered office is at Rohabari, Dibrugarh, declared dividends for the accounting years ending on 31-12-1959 to 31-12-1964, out of which tax amounting in aggregate to Rs. 72,400 was deducted. Details of gross dividend declared, date of declaration and tax deducted are as follows :
Date of declaration
It is detected that the entire tax deducted from dividend has not been paid to the Government account till now although certificates of tax deducted at source in terms of rule 31 of the Income-tax Rules, 1962, have duly been granted. In accordance with sub-rule (3) of rule 30 of the Income-tax Rules, 1962, payment should have been made as follows :
Date of declaration of dividends
Date within which payment must be made
In his letter dated 14-12-1967, the managing director stated that the payment of tax on dividend amounting to Rs. 72,400 has not been made due to oversight. As this was unconvincing and unacceptable, a notice was duly served on the principal officer on 16-12-1967, to show cause why he should not be treated as in default and penalty under section 221(1) should not be imposed. The date of hearing was fixed on 19-12-1967.
On the date fixed for hearing nobody appeared and there was no application for adjournment either. On 20-12-1967, Shri G. Banerjee, an employee of the company appeared. Although the date fixed for hearing was already gone and he did not give any reason for non-compliance on the date fixed, he was given hearing and the case was discussed. Shri Banerjee simply stated that tax deducted at source was not paid to the Government account because there was no demand for payment from the income-tax department.
The above excuse is thoroughly unconvincing and unacceptable. Section 200 of the Income-tax Act, 1961, casts responsibility on any person deducting tax at source to pay within the prescribed time, the sum so deducted, to the credit of the Central Government. Rule 30(3) of the Income-tax Rules, 1962, prescribes seven days from the date of deduction, for payment. The responsibility to pay in time, in this case, is therefore solely on the principal officer, and the excuse that no demand is made from the income-tax department is irrelevant.
The Principal officer, M/s. Shyam Sunder Tea Co. (P.) Ltd., is, therefore, deemed to be in default under section 201(1). Penalty under section 221(1) is accordingly imposed on him as below :
Issue D. N. & challan and copy of this order."
On appeal preferred by the assessee to the Appellate Commissioner of Income-tax (D. Wangdi), he found that the tax deducted at source was no deposited by the appellant-company till the end of 1967. Total tax deducted for the years 1959 to 1964 came to Rs. 72,400. The plain fact of the matter was that the assessee-company had retained the said amount to itself without depositing the same in the Treasury as required. Shri. D. Wangdi observed that even considering the bank rate of interest on this amount for all these years of default, the penalty imposed by the Income-tax Officer in the sum of Rs. 14,480 was not more than the bank rate of interest. The appeal was dismissed.
The assessee preferred a further appeal to the Appellate Tribunal, Gauhati Bench, which set aside the order of penalty relating to the assessment years 1960-61, 1961-62, 1962-63, 1963-64, 1964-65 and 1965-66, in the view that amounts as assessed, were not recoverable under the provisions of the Indian Income-tax Act, but that they could be recovered only by a suit in civil court; as such no penalty can be imposed either under section 46(7) of the Act of 1922, or under section 231 of the Income-tax Act, 1961. It is the correctness of this view that falls for consideration now.
It is necessary to notice the relevant provisions of the Act to appreciate the above question. chapter XVII of the Act (1961) relates to the collection and recovery of tax. Part A of chapter XVII contains section 190 and 191; they are general provisions relating to the deduction at source, advance and direct payment. Part B of chapter XVII (sections 192-234) relates to the deduction at source. Section 192 enables any person responsible for paying any income chargeable under the head "salaries" to deduct the necessary income-tax due at the time of payment. According to section 194, the principal officer of an Indian company shall, before making any payment in cash or before issuing any cheque or warrant in respect of any dividend or before making any distribution or payment to a shareholder, of any dividend within the meaning of sub-clause (a) or sub-clause (b) or sub-clause (c) or sub-clause (d) or sub-clause (d) or sub-clause (e) of clause (22) of section 2, deduct from the amount of such dividend income-tax at the rate in force. Section 2(22) of the Act describes what falls within the category of "dividend".
Section 200 of the Act enjoins a duty on the person so deducting any such sum by way of tax due, as aforesaid, to pay the same within the prescribed time, to the credit of the Central Government as the Board directs. The corresponding section in the Act of 1922 (hereinafter referred to as the "old Act") was section 18(3) Rule 10 under the old rules had specified the time of one week for such payment; rule 30(2), framed according to section 200 of the Act, prescribed the same period of one week. Section 201 of the Act deals with the consequences of the failure to deduct or pay; this is corresponding to section 18(7) of the old Act. It will be sufficient to read the relevant portion of section 201 of the Act :
"201. Consequences of failure to deduct or pay. - (1) if any such person in the cases referred to in section 194, the principal officer and the company of which he is the principal officer does not deduct or after deducting fails to pay the tax as required by or under this Act, he or it shall, without prejudice to any other consequences which he or it may incur, be deemed to be an assessee in default in respect of the tax :
Provided that no penalty shall be charged under section 221 from such person, principal officer or company unless the Income-tax Officer is satisfied that such person or principal officer or company, as the case may be, has without good and sufficient reasons failed to deduct. and pay the tax...."
Section 203 of the Act prescribes that every person deducting tax in accordance with the provisions of sections 192 to 194, etc., shall at the time of credit or payment of the sum or issued of cheque or warrant for payment of any dividend to a shareholder, furnish to the person to whose account such credit is given or to whom such payment is made or the cheque or warrant is issued, a certificate to the effect that tax has been deducted, and specifying the amount so deducted, the rate at which the tax has been deducted and such other particulars as may be prescribed.
Section 221 of the Act, which specifies when penalty is payable (when tax is in default), reads as follows :
"221. Penalty payable when tax in default. - (1) When an assessee is in default or is deemed to be in default in making payment of tax, he shall, in addition to the amount of the arrears and the amount of interest payable under sub-section (2) of section 220, be liable, by way of penalty, to pay such amount as the Income-tax officer may direct, and in the case of a continuing default, such further amount or amounts as the Income-tax Officer may, from time to time direct, so however, that the total amount of penalty does not exceed the amount of tax in arrears :
Provided that before levying any such penalty, the assessee shall be given a reasonable opportunity of being heard :
Provided further that where the Income-tax Officer is satisfied that the default was for good and sufficient reasons, no penalty shall be levied under this section....
(2) Where as a result of any final order the amount of tax, with respect to the default in the payment of which the penalty was levied, has been wholly reduced, the penalty levied shall be cancelled and the amount of penalty levied shall be cancelled and the amount of penalty paid shall be refunded."
The corresponding section in the Old Act was section 47.
Section 231 of the Act reads as follows :
"231. Period for commencing recovery proceedings - Save in accordance with the provisions of section 173 or sub-section (7) of section 220, no proceedings for the recovery of any sum payable under this Act shall be commenced after the expiration of one year from the last day of the financial year in which the demand is made, or, in the case of person who is deemed to be an assessee in default under any provision of this Act, after the expiration of one year from the last day of the financial year in which the assessee is deemed to be in default.
Explanation 1. - The period of one year referred to above shall be reckoned -
(i) where an assessee has been treated as not being in default under sub-section (6) of section 220, as long as his appeal is undisposed of, from the last day of the financial year in which the appeal is disposed of;
(ii) where recovery proceedings in any case have been stayed by any order of a court from the last day of the financial year in which the order is withdrawn;
(iii) where the date of payment of tax has been extended by an income-tax authority to another date, from the last day of the financial year in which such other date falls;
(iv) where the sum payable is allowed to be paid by instalments, from the last day of the financial year in which the last day of such instalments is due.
Explanation 2. - A proceedings for the recovery of any sum shall be deemed to have commenced within the meaning of this section, if some action is taken to recover the whole or any part of the sum within the period hereinbefore referred to."
Section 232, which specifically provides for recovery of the said amount by way of suit or under any other law not being affected by section 231, reads as follows :
"232. Recovery by suit or under other law not affected. -The several modes of recovery specified in this chapter shall not affect in any way -
(a) any other law for the time being in force relating to the recovery of debts due to Government; or
(b) the right of the Government to institute a suit for the recovery of the arrears due from the assessee;
and it shall be lawful for the Income-tax Officer or the Government as the case may be, to have recourse to any such law or suit, notwithstanding that the tax due is being recovered from the assessee by any mode specified in this chapter."
The question of limitation of time for recovery of Income-tax arrears by way of civil suit fell for consideration by a single judge of the Madras High Court in Nagappa Chettiar v. Union of India : 72ITR255(Mad) . In that case, the suit, which had been filed by the commissioner of Income-tax against the assessee in the year 1960 for the recovery of arrears of tax due for the year 1941-42, was resisted on the ground that it was barred by section 67 of the Indian Income-tax Act, 1922, as well as by limitation. The trial court had negatived both the contentions and decreed the suit. The decision of the trial court was confirmed by the appellate court. There was a further appeal to the High Court. We are concerned here only with the discussion pertaining to limitation. It was held that the suit was not barred as the period of limitation for such a suit was 60 years under section 149 of the Limitation Act, 1908. Reference was made therein to a previous Full Bench decision in Manickam Chettiar v. Income-tax Officer : 6ITR180(Mad) in the following terms, explaining the nature of tax arrears and the right of the state in this regard (page 262) :
"In execution of a money decree against a person, certain properties belonging to him were attached and brought to sale. That person was liable to pay income-tax arrears and the income-tax Officer made an application to the court for an order directing payment to him out of the sale proceeds of the amount of income-tax due to the Government. The Income-tax officer had not laid a suit against the assessee and obtained a decree. A Full Bench of the Madras High Court held that, despite that fact, the Crown was entitled to payment, having regard to the right of priority which the Crown has in payment of debts due to it and it was not necessary that a suit should have been filed by the crown. As corollary to this decision it would appear to follow that if the Crown was entitled merely on the basis of an undisputed debt owing to it to seek the inherent power of the court under section 151, Civil procedure code, to pay over the money to it in discharge of the income-tax liability of the person whose money had been brought to court by way of execution by a third party, the Crown was more or less in the position of another decree-holder seeking ratable distribution of the assets lying in court, though claiming priority over the other creditors. That would in effect mean that the Crown is not disentitled to sue the defaulting taxpayer and obtain a decree in the civil court."
The present Limitation act of 1963, article 112, provides a period of limitation of 30 years instead of 60 years. There is no other difference between these two articles. The Tribunal conceded in paragraph 13 of its order (page 17 of the paper book) that the amount in question could be recovered by a suit in civil court; in other words, the point decided in the above-said manner by the Madras High Court was not disputed by the Tribunal. But having held that a suit had to be filed for recovering the amount of the assessment, it jumped to the conclusion that no penalty could be imposed in respect of the said assessment year. The Tribunal has not given any specific reason in support of this view. It seems to us that the Tribunal has made such an assumption without there being any warrant for it. Turning to section 231, as quoted above, it is only seen that no proceedings for the recovery of any sum payable under the Act could be commenced under section 231, after the expiry of one year from the last date of the financial year in which the demand is made. It does not seem to follow, for this reason, that no penalty can be imposed if proceedings under section 231 are barred. The assessee-firm is a "deemed assessee in default" because the above-said sum of tax deducted, namely, Rs. 72,400, had not been paid into the Treasury. Section 232 makes it clear that the several modes of recovery specified in this chapter (namely, chapter 17 of which section 231 and 232 are part) shall not in any way affect the right to recover the same under any of the laws for the time being in force relating to the recovery of the debts due to Government, and that it is lawful for the Income-tax Officer or the Government, as the case may be, to have recourse to any such law or suit notwithstanding that the tax due is being recovered from the assessee by any mode specified in this chapter. The conclusion expressed by the Tribunal, that merely because the amount was not recoverable under section 231 of the Act of 1961 and that a suit alone had to be filed for the purpose would not seem to per se prohibit imposition of penalty. No provision of the said act has been brought to our notice, which will prevent such penalty being levied. On the other hand, section 221 which includes one "deemed to in default" being subject to a penalty without limitation, for making default in payment of tax, seems to imply that penalty is leviable on the assessee in this case. The decision in T. R. Rajkumari v. Income-tax officer : 83ITR189(Mad) relied upon by the Tribunal, only involved the case of a penalty vis-a-vis non-payment of advance tax when the power to collect advance tax "was not available". This is hardly of any assistance to the present assessee. We, therefore, differ from the view taken by the tribunal and hold that penalty could be imposed on the facts and in the circumstances of this case and that the Tribunal was not justified in cancelling the penalty imposed by the Income-tax Officer for the years in question.
The reference is accordingly answered in the above-said manner in favour of the revenue and against the assessee. In the circumstances of the case, we direct both parties will bear their own costs.