1. This appeal by the Commissioner of Income-tax has come up before us on a reference by a learned single judge of this court and is directed against a judgment of the Civil Judge, Civil Station, Bangalore, in R. A. No. 80/1970. That appeal had been preferred by the plaintiff-1st respondent against the judgment and decree of the principal munsiff, civil station, Bangalore, in O.S. No. 326 of 1968.
2. The facts relevant may be set out at some length and are as follows:
The plaintiff-1st respondent, Sundaram, and two other persons by name Balasubramaniam and Jayalakshmi constituted a partnership firm. The said firm having been dissolved, they were assessed to tax under the Indian Income-tax Act as an unregistered firm for the assessment year 1963-64. On such assessment, presumably at the instance of the partners, the total tax liability was apportioned between them for the purpose of convenience. The 1st respondent (plaintiff) and Jayalakshmi paid up the portions of the tax and the third partner, Balasubramaniam's liability remained undischarged. In the proceedings for recovery of the said balance of tax due, a printing machine, exclusively owned and belonging to the said Balasubramaniam, was attached, on or about April 1, 1966.
3. Subsequent to the said attachment one Suryanarayana, the 2nd res-pondent-3rd defendant, filed a suit on a mortgage dated October 10, 1963, and he had included the printing machine in question as one of the properties so mortgaged and obtained a decree. In the meanwhile, the 3rd respondent-4th defendant put forth a claim for prior charge on the basis of a pledge before the civil court in the aforesaid proceedings, which was allowed. The machine, however, was permitted to be sold by the 3rd respondent-bank and the sale proceeds thereof were first appropriated towards the dues of the bank, and the balance came to be paid over in discharge of the decree held by the 2nd respondent, Suryanarayana.
4. In view of the aforesaid decree and further proceedings, a claim was preferred before the Tax Recovery Officer alleging that the said Balasubramaniam had no saleable interest in the attached printing machine. This was allowed. Hence the suit, out of which this appeal has arisen, came to be filed by Sundaram, the quondam partner and father of the and Balasubramaniam.
5. It is alleged on behalf of the plaintiff that on the day the printing machine was mortgaged in favour of Suryanarayana, namely, April 1,1963, the said Balasubramaniam had no subsisting interest in it and, therefore, the said mortgagee was not entitled to include the same in the suit for the purpose of obtaining a decree for sale. Similarly, the pledge put forth by the 4th defendant-bank was not also valid. In the circumstances, the Tax Recovery Officer was not entitled to allow the claim of the 3rd respondent and release the machine from his custody, and he should, on the other hand, have asserted the department's 'paramount claim or lien' and, after arranging for the sale of the said machinery, entered full satisfaction or discharge of the tax dues of Balasubramaniam. It is also alleged that the said claim proceedings had been gone through without notice to the owner, Balasubramaniam. It is, however, admitted that on the day of the attachment in question Balasubramaniam was the owner of the said machinery. It is to be remarked that Balasubramaniam and Jayalakshmi, the quondam partners, have not been made parties in these proceedings. In these circumstances it is contended that none of the partners of the dissolved firm would be liable to comply with the notice of the Tax Recovery Officer dated 5th April, 1968, demanding the payment of the balance of tax due in a sum of Rs. 7,082.52.
6. For the purposes of disposal of this appeal, it is unnecessary to set out the defence of the defendants other than the Commissioner of Income-tax, the appellant herein. On behalf of the said defendant, it is mainly contended that such a suit would not be maintainable, in the light of the bar of jurisdiction enacted in Section 293 of the Income-tax Act, 1961.
7. In the light of these pleadings, issue No. 5 to the effect whether the suit was barred, as contended for the Commissioner of Income-tax, was framed and tried as a preliminary issue. The trial court answered the issue in the affirmative and in favour of the Commissioner and dismissed the suit. On appeal by the plaintiff, 1st respondent herein, the learned civil judge reversed the said finding of the learned munsiff and remanded the suit for hearing on the other issues. Hence this appeal.
8. Before the learned civil judge, in appeal, the entire matter seems to have been argued on the basis of the scope of the provisions of Section 293 of the Income-tax Act, in the light of certain reported decisions of the Supreme Court. The learned civil judge, placing reliance on the enunciation of the principles bearing on the question of a right of suit, available to an assessee under the Sales Tax Act, in the context of Section 9, Civil Procedure Code and the relevant provisions of the taxing statute concerned, held that the present suit was maintainable.
9. Before us, on behalf of the appellant, the same contention as was urged before the learned civil judge has been reiterated by his learned counsel. It is argued that having regard to the wide meaning ascribable to the word 'assessment', on the authority of certain decided cases, which, however, were not cited, the operation of the provisions of Section 293 of the Income-tax Act, 1961, must be extended to recovery proceedings also as in the case on hand. In support of such a proposition, reliance has been placed on a decision of a learned single judge of the Punjab High Court in Seth Harish Chandra v. Union of India, . which, according to the learned counsel, is the only decision available on the point.
10. Alternatively, for the first time in this appeal, without even having made it a ground of appeal, it is contended that Rule 9 of Schedule II of the Income-tax Act enacts a bar specifically excluding all questions relative to discharge and satisfaction of the liability for tax dues from the purview of the jurisdiction of civil courts, and the reliefs claimed in the present suit relate to one or the other matters enumerated in the said rule and, therefore, the said suit is clearly not maintainable. Having regard to the fact that this question did not involve further investigation into facts, beyond those already placed in the pleadings, we permitted it to be raised.
11. On behalf of the 1st respondent (plaintiff), it is strenuously contended that the suit in substance must be deemed to be one grounded on fraud, although it is not expressly stated so in the plaint. The learned counsel for the respondent also placed reliance on certain enunciations of the Supreme Court in the case of Pabbojan Tea Co. v. Deputy Commissioner, : (1967)IILLJ872SC . and contended that the ouster of jurisdiction of a civil court, under Section 9 of the Civil Procedure Code, ought not to be lightly inferred, unless it be that the bar has been clearly and expressly enacted in the special statute concerned or, in the case of an implied bar of suit, the remedies provided under the statute in question are found to be adequate and comparable to those available to a litigant under the ordinary procedure followed in a civil court.
12. On a careful examination of the matter, we are not persuaded to agree with the contentions urged on behalf of the 1st respondent, which we shall take up for consideration.
13. The allegation relative to the contention of fraud is merely this ; that the income-tax authority should have asserted its statutory paramount lien, instead of accepting the claim to a prior charge put forth on behalf of the respondent-bank, in the circumstances aforesaid. We fail to see how such a state of affairs could give rise to fraud within the meaning of Rule 9 of Schedule II of the Income-tax Act, which obviously has been the reason behind this submission, urged for the first time before this court. Moreover, in our view such a provision relating to a prior charge or paramount lien is plainly intended for the benefit of the income-tax authority, and, therefore, left to its discretion to have recourse to it or not in any given case.
14. It may also be mentioned that one of the contentions urged on behalf of the plaintiff-1st respondent, before the learned civil judge in appeal, has been that Balasubramaniam, the owner of the machinery in question, had not been notified of the claim proceedings initiated by the bank before the Tax Recovery Officer, and this being a clear violation of fundamental principles of judicial procedure, such proceedings are null and void and did not operate to create any rights in favour of the claimant therein. This contention found favour with the learned civil judge, although he, had earlier come to the conclusion that such a suit would be barred in view of Section 293 of the Income-tax Act. It is only in the light of such a conclusion he held that the suit would not be barred. We are of opinion that this conclusion is clearly erroneous.
15. Assuming, without deciding, that such a question of want of notice could not be raised before the Tax Recovery Officer himself, even in the light of the provisions of Rule 9 of Schedule II of the Income-tax Act, it is to be seen that such a question could properly, if at all, be raised only by the owner of the machine, Balasubramaniam. We fail to see how the plaintiff herein could claim the benefit of such omission, if any, on the part of the authority if only for the purpose of assailing the proceedings held in regard to such a claim.
16. The next and only remaining contention urged on behalf of the respondent is based on the decision in Pabbojan Tea Co.'s case. The Supreme Court in that case was concerned with a civil suit which had been held to have been barred under the provisions of the Minimum Wages Act. On a review of many of the decisions bearing on the point, his Lordship, Mitter J., has stated the position, in paragraph 15 of the aforesaid report, thus:
'On an analysis, of the provisions of the Act, we find (1) suits of the nature to be found in this case are not expressly barred by the Act; (2) there is no provision for appeal or revision from the direction of the authority given under Section 20(3) of the Act; and (3) the authority acting under Section 20(3) might levy a penalty which might be as high as ten times the alleged deficit of payment which again is not subject to any further scrutiny by any higher authority. In view of our findings as above, as also the fact that the authority in this case disregarded the provision as to hearing and inquiry contained in the Act for all practical purposes, we hold that the civil court had jurisdiction to entertain the suits.'
17. The above enunciation, in our view, would have relevance only when a question of implied bar of jurisdiction was required to be examined, and not when there is an express bar provided by a statute. We shall presently show that in fact there is to be found such a bar expressly enacted in Rule 9 of Schedule II of the Income-tax Act, In this view, this contention also has to fail.
18. We shall now turn to the contentions urged on behalf of the appellant. We do not consider it necessary to examine the first of the contentions based on Section 293 of the Income-tax Act, which corresponds substantially to Section 67 of the Indian Income-tax Act, 1922, as in our view, the alternative contention urged, based on Rule 9 of Schedule II of the latter Act, is sound and deserves acceptance.
19. The said rule reads thus :
'9. Except as otherwise expressly provided in this Act, every question arising between the Income-tax Officer and the defaulter or their representatives, relating to the execution, discharge or satisfaction of a certificate duly filed under this Act, or relating to the confirmation or setting aside by an order under this Act of a sale held in execution of such certificate, shall be determined, not by suit, but by order of the Tax Recovery Officer before whom such question arises : Provided that a suit may be brought in a civil court in respect of any such question upon the ground of fraud.' (Underlining* ours)
20. It is clear from the above provision that any discharge or satisfaction of the liability under a certificate of recovery can only be agitated before the Tax Recovery Officer and not by way of a suit. Provision, however, has been made for the filing of a suit only on the ground of fraud. We have earlier dealt with the circumstances bearing on the question of 'fraud' and concluded that the same did not arise from the relevant allegations in the pleadings on which some reliance had been placed on behalf of the 1st respondent. Hence, there is no question of the plaintiff availing himself of the benefit of the proviso to the said rule.
21. The next question that arises is whether on the allegations in the plaint and reliefs claimed, the case falls under the main provision of the said rule,
22. In paragraph (9) of the plaint, the position has been stated thus :
'None of the partners including the plaintiff is liable to be proceeded against either personally or against their assets for the payment of the amount demanded under the notice dated 5th April, 1968. The plaintiff is entitled for a direction against the second defendant to enter satisfaction and discharge in full of the amount demanded under the notice dated 5th April, 1968, and other reliefs prayed for by him.'
23. The main reliefs claimed in the plaint read thus :
'(i) for a declaration that the claim made under notice of the Tax Recovery Officer dated 5th April, 1968, served on the plaintiff on 7th June, 1968, has been discharged and is unenforceable;
(ii) for a declaration that the second defendant. Commissioner of Income-tax, has statutory priority and first charge against the schedule printing machine and the sale proceeds thereof as such, as against the claim of the 3rd and 4th defendants;
(iii) for a permanent injunction restraining the second defendant, his officers, agents or servants, or representatives from proceeding in any manner against the, plaintiff or other partners of the dissolved firm of Girinath Press Publications and Industries' or their assets to enforce the recovery of the alleged arrears of income-tax claimed under notice dated 5th April, 1968, for the assessment year 1963-64'.
24. On a careful perusal of the above-mentioned pleading and the reliefs claimed, it clearly seems to us that in substance what the plaintiff has sued for is a declaration that his liability under the notice of demand no longer subsisted and, therefore, the same must be deemed to have been discharged and the relevant tax recovery certificate fully satisfied. In this view, the subject-matter of the suit clearly attracts the bar enacted in the main part of Rule 9 of Schedule II of the Income-tax Act, 1961. We hold, therefore, that the suit is not maintainable, in reversal of the conclusion arrived at by the learned civil judge.
25. In the result, this appeal succeeds and is accordingly allowed. Consequently, the judgment of the first appellate court is set aside and that of the trial court restored. In the circumstances of the case, we direct the parties to bear their own costs.