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Chittoori Ramachandra Rao Vs. Tax Recovery Commissioner and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition No. 1435 of 1973
Judge
Reported in[1975]100ITR591(AP)
ActsIncome Tax Act, 1961 - Sections 222, 224(2) and 225(4); Constitution of India - Article 226; Income Tax Act, 1922; Taxation Laws (Continuation and Validation of Recovery Proceedings) Act, 1964 - 224(3)
AppellantChittoori Ramachandra Rao
RespondentTax Recovery Commissioner and ors.
Appellant AdvocateC. Trivikrama Rao, Adv.
Respondent AdvocateP. Rama Rao, Adv. for respondent Nos. 1 to 3 and ;M. Ramaiah, Adv. for respondents Nos. 4 and 5
Excerpt:
.....rules 9 and 61 to set aside sale stating that amount due from petitioner was wrongly published in sale proclamation - sale was objected on grounds mentioned in rule 61 - application to be made under rule 61 only - no substantial injuries sustained to appellant - no amount due from him was not deposited - writ petition for setting aside sale not maintainable. - - if the application was one under rule 61 the application would have to be dismissed summarily for failure of the defaulter to deposit the amount recoverable from him in execution of the certificate. even assuming that it was the right view under the 1922 act, i am of the opinion that it can no longer be said to be good law after the passing of the taxation laws (continuation and validation of recovery proceedings) act of..........issued under section 222, by some mistake the order of attachment served on the petitioner and the sale proclamation published as required by the rules mentioned the sum of rs. 1,04,080 as the sum payable by the petitioner. the order of attachment was passed on december 14, 1971, and the sale proclamation was published on june 7, 1972. the petitioner filed an objection-petition before the tax recovery officer pointing out that the amount due from the petitioner was wrongly mentioned in the sale proclamation. but, on july 22, 1972, he withdrew the objection-petition and stated ' regarding correct arrears of tax the position may be reconciled with reference to the office records. auction may go on without interruption '. thereafter, the figure mentioned in the sale proclamation was.....
Judgment:

Chinnappa Reddy, J.

1. The Income-tax Officer, B-Ward, Company Circle, Hyderabad, issued a certificate under Section 222 of the Income-tax Act to the Tax Recovery Officer for the recovery of a sum of Rs. 66,000 from the petitioner, the managing director of Kanakadurga Chit Funds(Private) Ltd., Nizamabad. Pursuant to the certificate a house belonging to the petitioner was attached and brought to sale. Though the actual amount due was Rs. 66,000 and that was the figure mentioned in the certificate issued under Section 222, by some mistake the order of attachment served on the petitioner and the sale proclamation published as required by the rules mentioned the sum of Rs. 1,04,080 as the sum payable by the petitioner. The order of attachment was passed on December 14, 1971, and the sale proclamation was published on June 7, 1972. The petitioner filed an objection-petition before the Tax Recovery Officer pointing out that the amount due from the petitioner was wrongly mentioned in the sale proclamation. But, on July 22, 1972, he withdrew the objection-petition and stated ' regarding correct arrears of tax the position may be reconciled with reference to the office records. Auction may go on without interruption '. Thereafter, the figure mentioned in the sale proclamation was corrected though no fresh sale proclamation was published. The sale was held on August 21, 1972. The property was sold for a sum of Rs. 1,27,000 subject to a mortgage for Rs. 30,000. The auction purchaser deposited the entire sale consideration on September 2, 1972. On September 16, 1972, the petitioner filed an application before the Tax Recovery Officer under Rule 61 of the Second Schedule of the Income-tax Act with a request that it might also be treated as an application under Rules 9 and 11 of the Schedule. If the application was one under Rule 61 the application would have to be dismissed summarily for failure of the defaulter to deposit the amount recoverable from him in execution of the certificate. That was why the petitioner requested that the application might be treated as one under Rule 9 also. Before the Tax Recovery Officer an objection was raised that the application was not maintainable under Rule 9. But the objection was overruled. The main ground on which the sale was sought to be set aside was that the sale was without jurisdiction since the proclamation of sale mentioned an incorrect sum as due from the petitioner. The Tax Recovery Officer held that the mention of the wrong figure was an irregularity and that it did not vitiate the sale. The petitioner preferred an appeal to the Tax Recovery Commissioner. The Tax Recovery Commissioner confirmed the finding of the Tax Recovery Officer that the wrong mention of the amount due from the petitioner was only an irregularity which did not vitiate the sale. The Tax Recovery Commissioner also held that the application could not be treated as one under Rule 9 as it did not disclose any dispute between the Income-tax Officer and the defaulter.

2. Sri Trivikrama Rao, learned counsel for the petitioner, urged that the mention of a wrong amount in the sale proclamation as due from the petitioner went to the root of the matter and rendered the sale void. Herelied on the decisions in Santosha Nadar v; First Additional Income-tax Officer : [1961]42ITR715(Mad) , Sriramiah v. Income-tax Officer [1964] 52 ITR 409 .and Collector of North Arcot v. V. K. Kannan : [1967]65ITR301(Mad) .

3. In Santosha Nadar's case, the certificate issued under Section 46(2) of the Indian Income-tax Act, 1922, mentioned Rs. 1,01,081 as the arrears of tax due from the defaulter whereas by the time of the sale the sum actually due was only Rs. 64,994. A revised certificate was not issued. The notice of attachment also specified the arrears due as Rs. 1,01,081. Rajagopalan, Officiating C.J., and Srinivasan J. held that the sale was vitiated. They said :

'Section 27 of the Revenue Recovery Act (2 of 1864) requires that the notice of attachment should specify the, arrears due. That is what gives jurisdiction to the Collector to bring the attached property subsequently to sale under Section 36. If the attachment was vitiated the subsequent sale also would be vitiated. It should be needless to point out that under the Revenue Recovery Act the Collector had no jurisdiction either to attach or to bring to sale properties to recover a sum higher than what was legally due on the date of the notice of attachment; and in this case the notification in the Gazette obviously proceeded on the basis that Rs. 1,01,081 was still due when it was not. That vitiated the subsequent sale.'

4. With great respect to the learned judges, I find it extremely difficult to agree with them. It is true that any proceedings for the recovery of arrears of tax by sale of the defaulter's property must commence with the issuance of a certificate by the Income-tax Officer specifying the arrears of tax due from the assessee. But it does not follow that an error in the figure mentioned in the certificate is an error of jurisdiction vitiating the subsequent sale. Otherwise, a defaulter, who is aware of the error, may lie low till the sale is held and then seek to have the entire proceedings set at nought and the sale declared void. If an assessee is in arrears of tax, if the Income-tax Officer is competent to issue the certificate and if the Tax Recovery Officer is competent to proceed further to recover the arrears, it matters not that a wrong figure is mentioned in the certificate; it does not affect jurisdiction. A question of jurisdiction may arise if the person named in the certificate as the defaulter is not in fact the defaulter or if no arrears of tax are due at all. I do not see why the mention of a wrong figure in the certificate should be treated as one pertaining to jurisdiction. If an error is committed and a wrong figure is mentioned the defaulter is not without opportunity to request the Income-tax Officer or the Tax Recovery Officer, as the case maybe, to rectify the error. Under the Indian Income-tax Act of 1922 Section 46(2) empowered the Collector, on receipt of a certi-ficate from the Income-tax Officer specifying the amount of arrears due from an assessee, to proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue. Thereafter, under the Revenue Recovery Act of 1864 (Madras), the Collector was required to issue a written notice to be served on the defaulter specifying the amount due. If the amount was not paid, the Collector was required to attach the property of the defaulter. The notice of attachment was again required to specify the arrears due, etc. Thus, there could be no question of any property of the defaulter being brought to sale without the defaulter being informed of the amount due. Thereby the defaulter was given the opportunity of pointing out any error that might have crept in. Where an error was brought to the notice of the Income-tax Officer he would issue a fresh certificate. Under the 1922 Act if the tax assessed was subsequently reduced by any of the appellate authorities it was necessary that a fresh notice of demand should be issued and further steps would follow thereafter. This was decided in Income-tax Officer v. Seghu Buchiah Setty : [1964]52ITR538(SC) .This position was rectified by the enactment of the Taxation Laws (Continuation and Validation of Recovery Proceedings) Act of 1964. It was provided by this Act that where the tax was reduced in appeal or other proceeding it shall not be necessary for the taxing authority to serve upon the assessee a fresh notice of demand. It was enough if the taxing authority gave intimation of the fact of reduction to the assessee and, where a certificate had been issued to the Tax Recovery Officer, to that officer. It was also provided that all proceedings initiated on the basis of the earlier notices of demand might be continued in relation to the reduced amount from the stage at which the proceedings stood immediately before such reduction. The position is also very clear under the Income-tax Act of 1961. Section 224(2) expressly provides :

' Notwithstanding the issue of a certificate to a Tax Recovery Officer, the Income-tax Officer shall have power to withdraw or correct any clerical or arithmatical mistake in the certificate by sending an intimation to the Tax Recovery Officer.'

5. Section 225(4) provides :

' Where a certificate for the recovery of tax has been issued and subsequently the amount of the outstanding demand is reduced as a result of an appeal or other proceeding under this Act, the Income-tax Officer shall, when the order which was the subject-matter of such appeal or other proceeding has become final and conclusive, amend the certificate or withdraw it, as the case may be.'

6. Orders withdrawing or cancelling a certificate or any correction made by an Income-tax Officer under Section 224(2) or any amendment made under Section 225(4) are required to be intimated to the Tax Recovery Officer by the Income-tax Officer under Section 224(3). The effect of Section 224(2), Section 225(4) and Section 224(3) is that it is no longer necessary, under the Income-tax Act, 1961, to issue a fresh notice of demand when the amount of tax is reduced in an appeal or when an error is discovered in the figure mentioned in the notice of demand or the. certificate. In such cases, it is enough if the correct amount to be recovered is intimated to the Tax Recovery Officer, Under the 1922 Act without the aid of the Taxation Laws (Continuation and Validation of Recovery Proceedings) Act of 1964 it was possible to argue that since a certificate could not be altered or corrected by a mere intimation to the Tax Recovery Officer, but could only be replaced by a fresh certificate, a sale of the property of a defaulter pursuant to a certificate mentioning an incorrect amount as due from the defaulter was void. That was the view which was taken in Santosha Nadar's case. Even assuming that it was the right view under the 1922 Act, I am of the opinion that it can no longer be said to be good law after the passing of the Taxation Laws (Continuation and Validation of Recovery Proceedings) Act of 1964, and the Income-tax Act of 1961. It is not necessary to refer to the decisions in Sriramiah v. Income-tax Officer and Collector of North Arcot v. V.K. Kannan, which purport to follow Santosha Nadar's case without throwing any further light on the question. I, therefore, agree with the Tax Recovery Officer and the Tax Recovery Commissioner that the sale was not without jurisdiction.

7. I may also mention at this stage that the principle of Santosha Nadar's case and other cases is not applicable to the present case also for the reason that in those cases the error appeared in the very certificate which was supposed to give jurisdiction to the Tax Recovery Officer while in the present case the error appeared not in the certificate but in the notice of attachment and the sale proclamation issued by the Tax Recovery Officer. In cases arising under Order XXI of the Civil Procedure Code it has been held that an incorrect statement in the sale proclamation as to the amount due under the decree did not affect the jurisdiction of the court to sell the property and the sale held under a proclamation containing such incorrect statement was not illegal. The error was a mere irregularity and did not render the sale a nullity (Vide Pramatha Nath Bose v. Bhuban Mohan Bose AIR 1922 Cal 321 and Kasthuri Aiyangar v. Arunachalam Chettiar, [1916] 34 IC 350 . In the present case, we have also the further circumstance that when the mistake was brought to the notice of the Tax Recovery Officer he noted it arid corrected the sale proclamation though he did not issue a fresh sale proclamation.There is also the circumstance that the defaulter himself by his letter dated July 22, 1972, waived his objection on the score that an incorrect amount is mentioned in the sale proclamation.

8. The ground on which the defaulter sought to have the sale set aside, it has been seen, was that the sale proclamation mentioned a large amount as due from the defaulter though what was in fact due was a much smaller amount. Now, a sale can be set aside under Rule 61 of the Second Schedule on the ground of material irregularity in publishing or conducting the sale provided certain conditions are fulfilled. An error relating to the amount due from the defaulter as mentioned in the sale proclamation is clearly an irregularity in publishing or conducting the sale. The application to set aside a sale on that ground must, therefore, be made under Rule 61 only. According to the learned counsel for the petitioner an application could also be made under Rule 9 which is as follows :

' 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 by 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.'

9. I do not agree with the submission of the learned counsel. Where theattack on the sale is based on the grounds mentioned in Rule 61, it mustonly be made under Rule 61 and not under Rule 9. Otherwise, the provisionsof Rule 61 would be rendered superfluous. In the case of sales held inexecution of the decrees of civil courts it has always been held that anapplication to set aside a sale on grounds covered by Order XXI, Rule 89,90 or 91, should be made and dealt with under those provisions only and notunder Section 47. It has been pointed out that to hold otherwise would be torender the provisions of Order 21, Rule 89, 90 or 91 superfluous so far as parties to the suit or their representatives are concerned (Vide Jatindra Mohanv. Mahipal, AIR 1948 Cal 203, Seshagin Ayyar v. Valambal Ammal : AIR1952Mad377 and Narayanan Namboo-diripad v. Thomakutty : AIR1967Ker163 ). The application to set aside the sale, in the present case, was, therefore, rightly held by the Tax Recovery Commissionerto fall under Rule 61 of the Second Schedule and not under Rule 9. Rule 61provides that no sale shall be set aside unless the applicant has sustainedsubstantial injury by reason of the irregularity and that an application bya defaulter shall be disallowed unless the applicant deposits the amount recoverable from him in execution of the certificate. The petitioner did not choose to deposit the amount recoverable from him and, therefore, the application treated as one under Rule 61 had necessarily to be disallowed. In the result, the writ petition is dismissed with costs. Advocate's fee Rs. 100.


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