1. These two appeals against an order of the Civil Judge, Senior Division, Nagpur, raise common question of law and facts. They are, therefore, being heard and decided together.
2. Special Civil Suit No. 237 of 1977, was filed by Inayat Hussain, appellant in A.O. No. 31 of 1977, while Special Civil Suit No. 236 of 1977, was filed by Smt. Sugarabi, the appellant in A.O. No. 32 of 1977. Both the suits were filed against the Union of India praying for a declaration that the property in suit belongs to them and was not liable to be taken for the satisfaction of dues against an assessee, Fakruddin. In both these suits, which were filed on March 3, 1977, an application for interim injunction was filed on March 15, 1977. The defendant, Union of India, appeared and filed their reply to the application for interim injunction and by the order passed by the learned trial judge on October 10, 1977, both the applications came to be rejected with costs. It is against this order of the trial court that the present appeals are filed.
3. In order to understand the controversy, which is raised before me, the facts giving rise to these applications may be stated. Fakruddin was an assessee liable to pay income-tax on account of income from his dealings. Fakruddin was admittedly an assessee who was liable to pay income-tax dues to the Union of India, which cane to the tune of about Rs. 3,00,000. Recovery proceedings, therefore, were commenced against Fakruddin and a notice under r. 2 of Sch. II of the I.T. Act was issued to him o7 December 17, 1971. Fakruddin was possessed of certain immovable properties situated within the City of Nagpur, namely, House Nos. 8 and 47 and godown No. 36 in Gandhibaug and another property, House No. 481 in Circle No. 13/19. Boharipura. On March 1, 1973, Fakruddin sold his house Nos. 8 and 47 and a godown in Gandhibaug to Inayat Hussain. This Inayat Hussain happens to be a nephew of Fakruddin. On October 27, 1972, similarly, he sold his property, House No, 481, situated in Boharipura, to Smt. Sugarabi, who was his mother-in-law.
4. In the recovery proceedings which were started against Fakruddin, the ITO (Recovery) on November 27, 1973, attached both the properties of Fakruddin, one sold to Inayat Hussain and the other sold to Sugarabi, who are the respective appellants before me in A.O. No. 31 of 1977 and A.O. No. 32 of 1977. It appears and I am informed, that both Inayat Hussain and Sugarabi took out proceedings after attachment under r. 11 of the Schedule to the I. T. Act and took objection to the proposed sale of the properties which were purchased by them in 1972 and 1973. Their objections failed and the property was directed to be put up for sale and was actually sole on March 11, 1977.
5. On March 3, 1977, as stated above, the present suits were commences by Inayat Hussain and Sugarabi, in which, as stated earlier, they filed an application for interim injunction.
6. The principal ground, on which it was contended on behalf of the appellants-plaintiffs in the court below the interim injunction should be granted in their favour, was firstly that when the properties were purchases by them they were not under attachment. The attachment was subsequent. The second ground which was urged was that upon a true and correct interpretation of s. 281 of the I.T. Act, as it stood prior to its amendment in October, 1975, it was for the revenue to show that the transfer by the assessee, Fakruddin in this case, was with an intention to defraud the department, and it is only then that the property can become available upon being so proved, for being taken for satisfaction of the dues from Fakruddin. It was, therefore, urged that the plaintiffs had proved a prima facie case that there was an issue which was triable, as to whether s. 281 applied and whether the transfer was with an intention to defraud and if it was urged there was a triable issue to go to trial before the court, then the plaintiffs were entitled to an interim injunction.
7. In the view of the learned trial judge who decided the applications, s. 281 of the I.T. Act applied only to cases where assessment proceedings were pending. In the view which he took, therefore, he held that s. 281 has no application. Considering the effect of rr. 2, 16, 45 and 51 of the Second Schedule attached to the I.T. Act he came to the conclusion that here there was no question of an intention to defraud and, therefore, the plaintiffs, in his opinion, had not made out a prima facie case. In that view of the matter, the learned trial judge rejected the application.
8. Mr. Potey, who appeared for the appellants before me, in support of the appeals placed considerable reliance upon a decision from the Kerala High Court in V. Radhakrishna Eradi v. TRO : 105ITR30(Ker) . Mr. Potey contended, firstly, that s. 281 is a section of general application. That the principle enacted in that section being of general application, the Rules which are to be found in the Schedule must be deemed to be subordinate to that principle. If the section has application to all kinds of proceedings contemplated under the I.T. Act and Mr. Potey urged that recovery proceeding is equally a proceeding under the Act, then the provisions and principles of s. 281 must be read into the Rules. If that is done, according to Mr. Potey, then rr. 16 and 48 upon which reliance has been placed in the court below must be read subject to s. 281. In other words, it was Mr. Potey's contention that it was for the revenue to establish in every case where a property is transferred as contemplated by s. 281 that it was so transferred or parted with possession with an intention to defraud, and unless the revenue or the department establishes that the transfer was with an intention to defraud, the property could not be got for the purpose of recovery of tax. As I pointed out, Mr. Potey heavily relied upon a decision of the Kerala High Court. Unfortunately, for the reasons which I shall presently give, I am unable to agree.
9. The relevant provisions which fall for determination and consideration are s. 281 of the I.T. Act and rr. 2, 16, 48 and 51 of the Second Schedule. The question, however, which is raised is a very narrow question, and that is, whether s. 281 and r. 16 operate on and cover the same field and area or otherwise. If s. 281 is of general application and if r. 16 is of special application there cannot be any quarrel that the rule which provides for specific contingencies and circumstances, will apply to those specific cases and not s. 281. It is only in cases where there is no specific provision either in the section or in the rule that s. 281 will have application. There can be no quarrel and the argument of Mr. Potey can be easily accepted that where there is a conflict between a rule and a section, then it will be the section which will have precedence. It is true that both the section as well as the rules in this case have been enacted by Parliament and are parts of the same enactment, but if there is a conflict in the two provisions in the same enactment, it has to be considered whether the section has a position of pre-eminence over that of a rule, and there can be no dispute that the section will prevail over the rule. Mr. Potey contented that, in the present case, s. 281 is a section of general application and r. 16 also provides for a situation in the case of recovery proceeding and, therefore, the principle laid down in s. 281 would apply, and if there is any conflict, the conflict or inconsistency must be resolved in favour of the section than the rule. Section 281 of the I.T. Act reads as follows :
'281. (1) Where, during the pendency of any proceeding under this Act or after the completion thereof, but before the service of notice under rule 2 of the Second Schedule, any assessee creates a charge on, or parts with the possession (by way of sale, mortgage, gift, exchange or any other mode of transfer whatsoever) of, any of his assets in favour of any other person, such charge or transfer shall be void as against any claim in respect of any tax or any other sum payable by the assessee as a result of the completion of the said proceeding or otherwise :
Provided that such charge or transfer shall not be void if it is made -
(i) for adequate consideration and without notice of the pendency of such proceeding or, as the case may be, without notice of such tax or other sum payable by the assessee; or
(ii) with the previous permission of the Income-tax Officer.
(2) This section applies to cases where the amount of tax or other sum payable or likely to be payable exceeds five thousand rupees and the assets charged or transferred exceed ten thousand rupees in value.
Explanation- In this section, 'assets' means land, building, machinery, plant, shares, securities and fixed deposits in banks, to the extent to which any of the assets aforesaid does not form that part of the stock-in-trade of the business of the assessee.'
10. Now, upon a plan construction of that section and considering the first clause which lays down that that section applies 'during the pendency of any proceeding' it is clear that it will apply to any proceeding which is contemplated under the Act. The limited construction which was sought to be placed upon s. 281 as being applicable only where proceedings for assessment are pending, for the reasons which I shall presently give while considering the argument advanced on behalf of the respondent in support of this proposition, appears to me to be unsound and artificial. Now, the proceeding under the Act can be three-fold broadly, (1) for the finalisation of tax liability of an assessee, (2) for finalisation of default proceeding for failure on the part of the assessee, and (3) finally, for recovery on his failure to pay the demanded tax by him. All these must be properly construed as proceedings under the Act and unless there are words in s. 281 which limit the operation of that section to any one or more of the proceedings referred to above, the operation of the first clause in s. 281 cannot be restricted.
11. Mr, Shelat, who appeared for the respondent, contended that the words in the concluding part of s. 281 indicate that the section operates and relates only to proceeding for finalisation of assessment. Those words, according to him, are 'the transfer shall be void as against any claim in respect of any tax or any other sum payable by the assessee as a result of the completion of the said proceeding'. Mr. Shelat emphasised the words 'as a result of the completion of the said proceedings'. Mr. Shelat contended that the clause 'as a result of the completion of the said proceeding' qualifies the word 'proceeding' appearing in the first part of the section. Therefore, according to him, the pendency must be of such proceeding as is to be completed, and by reason of completion, or as a result of the completion of such proceeding, the tax or any other sum must become payable by the assessee. This, in his opinion, indicates that this was only during the course of assessment proceeding. I do not think that this limited construction sought to be put by Mr. Shelat is either in consonance with the intention of the section, or even for the benefit of the revenue for which the section is enacted. Besides, the normal and plain grammatical meaning of these words does not restrict such a meaning. It cannot be doubted the penalty proceeding would be also completed and upon completion of the penalty proceeding, a tax or some such sum would be payable by the assessee. It follows, therefore, that apart from the assessment proceeding, penalty proceedings are equally covered by the words in the clause upon which Mr. Shelat placed reliance. It seems to me that they are equally capable of covering the case of recovery. A case may arise where recovery proceeding against an assessee may be partly completed and as a result of the partial completion of the proceeding the remaining amount would still be payable by the assessee. Where the assessee is still liable to pay and his property which can be still proceeded against, then the proceeding for recovery 'of any other sum' pending under the Act. I do not see why such a contingency can be and ought to be excluded which it would be necessary to do so if the interpretation of Mr. Shelat were to be accepted.
12. Mr. Shelat contended that in cases where recovery proceedings are commenced the liability of the assessee is determined. The word 'payable', however, in my opinion, not merely relates to fixation of the liability but also the liability to pay that amount, and a transfer has been made void in that section as against any claim in respect of the sum payable by the assessee. As I pointed out, where part of the recovery proceeding has been completed, leaving still a claim due from the assessee or an amount payable from the assessee, it is still a claim or amount which is payable by the assessee. If that is so, I do not see why s. 281 should be limited so as to apply only to finalisation of assessment and penalty proceedings. The construction which I am inclined to put upon s. 281, as it stood prior to its amendment, is also in consonance with the amended s. 281, which now finds place on the statute book. In that amended section now the relevant additional words which are used are thus :
'Where, during the pendency of any proceeding under this Act or after the completion thereof, but before the service of notice under rule 2 of the Second Schedule.'
13. That would indicate that s. 281 will continue to govern recovery proceedings which are started as soon as a certificate is issued under s. 222 of the I.T. Act against the assessee, but until any notice issued under r. 2 calling upon the assessee to make payment. Obviously, though the recovery proceedings are started may be some time gap between the time when the certificate is issued and a notice under r. 2 is served upon the assessee. Section 281, as amended, now takes care of such stage prior to the issuance and service of a notice under r. 2 As I shall point out, when I deal with the rule that subsequent to the issuing and service of notice under r. 2, the following rules take care of any mischief or any transfer of property by the assessee or defaulter in any manner. Presumably, therefore, the amended section is not intended to provide for cases after service of notice under r. 2 and properly so, since the Rules under the Schedule have teeth enough to take care of all such situations.
14. It is now necessary to analyse the judgment of the Kerala High Court in V. Radhakrishna Eradi V. TRO : 105ITR30(Ker) . The argument which was advanced before me by Mr. Potey was also advanced there on behalf of the appellant, while on behalf of the department it was principally contended that s. 281 and the Rules are meant 'to meet two different situations or circumstances'. It seems to have been also represented before the Kerala High Court on behalf of the revenue that s. 281 has application to transfers during pre-recovery proceedings and where penalty proceedings were pending, and did not apply to recovery proceeding and it was r. 16 which applies to recovery proceedings. Summarising the argument urged on behalf of both the petitioner and the respondent, it was pointed out that 'the controversy is only as regards the respective fields in which section 281 and rule 16 operate. In other words, does section 281 apply to recovery proceedings also, is the sole question urged before me.' His Lordship then held that s. 281 applies to recovery proceedings as well and observed that 'the section has wider application as it covers the entire area in which the Act operates while the rule is limited in its application to the recovery stage'. His Lordship further observed that 'the question, therefore, is whether the immunity provided under section 281 can be read into rule 16 as to protect an innocent transferee in recovery proceedings against the assessee.'
15. His Lordship then addressed himself to the crucial questions in the case and that was, to put in his words, is as under (p. 39) :
'Bearing these principles in mind, one has to look at the provisions to find out whether there is in fact a conflict between section 281 and rule 16. If the language of section 281 and that of rule 16 suggest that they deal with the same subject-matter and seek to achieve the same results, then both the provisions, as far as possible, must be read in such a way that there is no conflict between the two.
If section 281 was general and rule 16 was particular and they were inconsistent with each other, then according to the principle of interpretation, rule 16, although appearing in the Schedule, would prevail against the former.'
16. In the view which he took and which is expresses in the following paragraph that 'section 281 and rule 16 deal with the same subject-matter, not generally but specifically', his Lordship came to the conclusion that 'the provisions of section 281 have to be read in rule 16'. I am unable to agree for the reason which I shall presently point out. To my mind s. 281 and r. 16 do not deal with the same subject matter, and that r. 16 must prevail over s. 16 must prevail over s. 281 in the specific case which is covered by r. 16.
17. Before, however, proceeding to deal with the rules and the specific area and the subject which they cover, it is necessary to examine s. 281 a little more closely again in order to understand in what areas and to what cases s. 281 has application. It will be seen from the wording of s. 281, which I have adverted to above, that the contingency which is contemplated is apart from the pendency of the proceeding, an assessee creating a charge on, or parting with 'the possession by way of sale, mortgage, gift, exchange or any other mode of transfer whatsoever of any of his assets'. It will thus be seen that the essential for attraction of s. 281 is that the assessee must either create a charge on, or part with the possession either by way of sale, mortgage, gift, exchange or any other mode of transfer and with regard to any of his assets. Taking the last limb of his part of the section, it will be seen that it applies to movables as well as immovable property. Therefore, s. 281 has application not merely to assets which are immovable but also to assets which are movable. The second is that it also applies to movables as well as immovable property. Therefore, s. 281 has application not merely to assets which are immovable but also to assets which are movables. The second is that it where the assessee creates a charge in which case there is no transfer of possession, as in the case of simple charge or a simple mortgage. The third case which this part of the section deals with is a transfer of possession. It will thus be seen that s. 281 not merely deals with cases of all kinds of properties, movable or immovable, tangible or intangible, but also deals with cases where the assessee does not part with possession, but creates charges or encumbrances on the property. As I shall point out presently, rr. 2, 16, 48 and 51 if read together, it will be clear that they only apply to immovable property and so not apply to cases where the property is not specific movable or intangible and there is no question of transfer of possession or otherwise. It will be seen that if there is no transfer of possession or there is no creation of a charge, s. 281 would not be attracted.
18. Even that is not enough for the operation of s. 281. The more essential part of s. 281, and if I may say so, the heart of s. 281, is that the transfer or creation of a charge by the assessee, must be of a particular nature and that is 'with the intention to defraud the revenue'. Therefore, if the assessee creates a charge or parts with possession of any property, movable or immovable, tangible or intangible, but without any intention to defraud, which is a fact and has to be proved like any other fact, then also s. 281 has no application. As I pointed out, the heart of s. 281 is the intention to defraud and of the intention to defraud the revenue is absent or is not claimed to be present, s. 281 cannot be invoked.
19. As distinct from the section and if the rules ar considered, rr. 2, 16, 48 and 51 operate by their own force, and no intention to defraud the revenue is necessary at all. They also do not have any application to intangible or movable property which is not in fact attached and the question whether there is transfer of possession or creation of a charge or not is immaterial. The relevant rules read thus :
'2. Issue of notice - When a certificate had been received by the Tax Recovery Officer form the Income-tax Officer for the recovery of arrears under this Schedule, the Tax Recovery Officer shall cause to be served upon the defaulter a notice requiring the defaulter to pay the amount specified in the certificate within fifteen days from for that the service of the notice and intimating that in default steps would be taken to realise the amount under this Schedule.'
'16. Private alienation to be void in certain cases - (1) Where a notice has been served on a defaulter under rule 2, the defaulter or his representative in interest shall not be competent to mortgage, charge, lease or otherwise deal with any property belonging to him except with the permission of the Tax Recovery Officer, not shall any civil court issue any process against such property in execution of a decree for the payment of money.
(2) Where an attachment has been made under this Schedule, any private transfer or delivery of the property attached or of any interest therein and any payment to the defaulter of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.'
'48. Attachment - Attachment of the immovable property of the defaulter shall be made by an order prohibiting the defaulter from transferring or charging the property in any way and prohibiting all persons from taking any benefit under such transfer or charge.'
'51. Attachment to relate back from the date of service of notice - Where any immovable property is attached under this Schedule, the attachment shall relate book to, and take effect from, the date on which the notice to pay the arrears, issued under this Schedule, was served upon the defaulter.'
20. It will thus be seen that upon the issuance of the notice on a certificate being granted by the TRO, if followed by an attachment of immovable property, whether or not in the possession of the assessee, the attachment by virtue of r. 51 relates back to the date of the service of the notice. In the present case, the notice admittedly was served on December 17, 1971. Though the attachment in this case is subsequent to the purchase, which are challenged, namely, of October 27, 1972, and March 1, 1973, and prior to November 23, 1973, when the attachment in fact took place, by reason or r. 51, the attachment would be deemed to be effective from December 17, 1971, itself.
21. It is now necessary to look to r. 16. The relevant rule which really has application is not sub-r. (1) of r. 16 sub-r. (2) of r. 16, That sub rule really enacts a principle which is to be found in s. 64 of the Code of Civil Procedure, which makes all transfers of immovable properties void as against claims enforceable under the attachment. As we have seen the continued operation of rr. 2 and 48 and rr. 16 and 51 relates to immovable property. Therefore, where immovable property is attached, and the attachment as in this case must be deemed to be effected from December 17, 1971, a transfer subsequently by Fakruddin in favour of the appellants on October 27, 1972, and March 1, would be of no avail and would be void as against the department which has attached this house property for the recovery of its claims. No question of bona fide transfer for value or any other question as contemplated in s. 281 or an intention to defraud the revenue arises at all. By the force of attachment itself the property becomes open to be taken and sold for satisfaction of the claim of the attaching department. Under the circumstances, it seems to me plain and obvious that the two provisions of the Act do not operate on the same field. That r. 16 coupled with rr. 48, 51 and 2 specifically provides for recovery proceeding being taken against immovable property. Therefore, though even in regard to the recovery proceeding s. 281 will still be available, where the property is immovable property, the relevant rules with which we are concerned deal with cases of immovable property and, therefore, specifically of a different subject. That specific subject is to be carved out from the ambit of s. 281 and if that is so, then according to rules of interpretation laid down, it is the specific provision which will govern. In the circumstances, I am unable to agree with the view taken by the Kerala High Court. In that view of the matter, the appeals will have to be dismissed
22. Mr. Potey, however, lastly urged an argument bases upon sub-r. (2) of r. 16 and the circumstances that a different view has been taken as to the operation of s. 281 and r. 16 by another High Court, thereby indicating that a triable issue arises between the parties. The first contention which Mr. Potey raised based upon sub-r. (2) of r. 16 was that the words used in sub-r. (2) are 'where an attachment has been made'. Mr. Potey contended that this would refer to the physical date of attachment and not the deemed date. According to Mr. Potey, under r. 51 a fiction of relation back is created. There is in Mr. Potey's opinion a conflict between r. 16, sub-r. (2), and r. 51 and if there is a conflict, it was Mr. Potey's submission that if should be resolved in favour of the assessee. The enactment being a fiscal enactment it should be so construed that the benefit should go to the assessee. I do not wish to express any opinion though I am not prepared to be taken in with the argument advanced by Mr. Potey. However, there is some substance in what he says that in view of the possibility of an interpretation of sub-r. 2 as to the fact of attachment and the different interpretation, from the one which has been placed by the Kerala High Court, placed by me on s. 281, a triable issue between the parties arises. It is true that when a court has to consider whether an injunction should be granted or otherwise it has to consider only a prima facie case. A prima facie case, it is well laid down, does not mean a case which will succeed, but a case which is not such as is apparently barred by any provisions of law, and in respect of which something can be said in favour of the plaintiff. In view of what I have said so far, there seems to be some substance in Mr. Potey's contention that the minimum to which he is entitled is to show that he was some sort of a prima facie case, which requires further investigation. It is not without some reluctance that I am inclined to think in the manner in which Mr. Potey wants me to do. But that can only be on terms. A litigation of this kind should not be used for purposes of defeating the provisions of tax laws. They have an impact on the public and involve rights and interests of other persons who are not before the court apart from having a general effect upon the assessees and defaulters and tax dodgers. Taking therefore, an overall view of the matter, though with some reluctance, I am inclined to grant an interim injunction in favour of the plaintiffs, provided the plaintiffs deposit a sum of Rs. 10,000 each in both the suits within three weeks from the date of this order. Upon failure of the plaintiff to deposit the amount, the injunction as prayed for will stand vacated. Mr. Shelat says that in respect of the property which is the subject-matter of A.O. No. 31 of 1977 confirmation has already taken place and a sale certificate issued. That the department thereafter is not responsible to anything with reference to the auction purchaser of the property. If that is so, then it would be obvious that the injunction be issued on the above terms restraining the defendant from confirming the sale.
23. The amounts if deposited will remain in deposit till the decision of the suits subject to the final decision of the suits and would be payable according to the orders of the court. The trial court may consider the advisability of investing the amount in the meantime in fixed deposit for a specific period. Mr. Potey at this stage requested that permission to file Letters Patent Appeal may please be granted. Leave granted.
24. There will be no order as to costs of this appeal.