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Syed Zahoor Haider Vs. Collector of Muzaffarnagar and Another. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad High Court
Decided On
Case NumberCivil Miscellaneous Writ No. 2856 of 1958
Reported in[1962]46ITR620(All)
AppellantSyed Zahoor Haider
RespondentCollector of Muzaffarnagar and Another.
Excerpt:
- - ' the effect of this proviso is only that an assessee shall not be treated as being in default where an appeal has been filed and where a stay order has been granted in that appeal, but clearly only so long as the stay order subsists......quashing the order dated august 25, 1958, rejecting the objection filed by the petitioner in recovery proceedings in respect of the agricultural income-tax amounting to rs. 659-11-0 and penalty amounting to rs. 164 and a writ of mandamus may be issued commanding the respondents not to arrest the petitioner or to auction his property for the realisation of the above amounts.the facts of the case may be shortly stated. on october 4, 1955, the petitioner was assessed to agricultural income-tax for the year 1362 f. in the sum of rs. 659-11-0, under the provisions of section 30 of the u.p. agricultural income-tax act, hereinafter called the act. the amount of tax was payable in two instalments, the first instalment of rs. 329-14-0 on november 23, 1955, and the second instalment of an.....
Judgment:

This is writ petition under article 226 of the Constitution of India.

The prayers contained in this writ petition are that a writ of certiorari may be issued quashing the order dated August 25, 1958, rejecting the objection filed by the petitioner in recovery proceedings in respect of the agricultural income-tax amounting to Rs. 659-11-0 and penalty amounting to Rs. 164 and a writ of mandamus may be issued commanding the respondents not to arrest the petitioner or to auction his property for the realisation of the above amounts.

The facts of the case may be shortly stated. On October 4, 1955, the petitioner was assessed to agricultural income-tax for the year 1362 F. in the sum of Rs. 659-11-0, under the provisions of section 30 of the U.P. Agricultural Income-tax Act, hereinafter called the Act. The amount of tax was payable in two instalments, the first instalment of Rs. 329-14-0 on November 23, 1955, and the second instalment of an equal amount payable on May 23, 1956. Before, however, anything was paid, the petitioner filed an appeal before the Commissioner, and on December 18, 1955, the Commissioner passed an order staying realisation of the tax. On March 5, 1956, the appeal was dismissed for default of appearance of the petitioner. On February 10, 1958, the assessing authority imposed a penalty of Rs. 164 for default of payment of the two instalments of tax at Rs. 82 each for the two defaults and ordered that the Collector may be requested to realize the total demand amounting to Rs. 823-11-0 as arrears of land revenue. It is stated in the petitioners affidavit that in March, 1958, the Amin came for the realization of tax and penalty, whereupon the petitioner filed objections on June 25, 1958, before the assessing authority. The objections were dismissed by the assessing authority by order dated August 25, 1958. On September 21, 1958, the Amin visited the petitioners house with a warrant for his arrest, whereupon on the 1st October, 1958, this writ petition was filed.

The petitioner has relied upon the provisions of sub-section (2) of section 32 in support of his petition. The provision in this sub-section is as follows :

'No proceedings for the recovery of any sum payable under this Act shall be commenced after the expiration of one year from the date on which the instalment fixed under section 30 falls due or after the expiration of one year from the date on which any appeal relating to such sum has been disposed of.'

It is urged that the recovery proceedings, being beyond one year of the disposal of the appeal are barred by limitation and are, therefore, incompetent.

A counter-affidavit has been filed on behalf of the respondent that information about the dismissal of the appeal was received in the office of the Collector only on January 16, 1958. In support of this statement a copy of the order of the dismissal of the appeal witch its endorsement has been filed as annexure '2' to the counter-affidavit. In that annexure, there is an order by the assessing authority of the same date requiring further action to be taken. It has been stated in the counter-affidavit that as proceedings for realisation of tax had been stayed in appeal by the Additional Commissioner by order dated December 18, 1955, and as information of the dismissal of the appeal was received only on January 16, 1958, it was assumed that the order of stay of proceedings stood discharged only on January 16, 1958. In due course, as already stated above, a penalty was imposed and recovery proceedings initiated under orders of the assessing authority dated January 16, 1958, and February 10, 1958. It is pleaded that from the date of the communication of the order of dismissal of the appeal, the recovery proceedings are within time.

The short question which falls for decision in this case is whether the recovery proceedings initiated on January 16, 1958, are or are not within time. It has been seen that the appeal of the petitioner was 'disposed of' by the appellate authority by order dated March 5, 1956. The order for stay of realisation of tax must also be deemed to have automatically come to an end on that very day. The instalments not having been paid, the petitioner must be deemed to be in default as provided in sub-section (3) of section 30. Sub-section (3) is to the following effect :

'If any instalment is not paid within the time allowed under sub-section (2), the assessee shall be in default.'

There is a proviso to sub-section (3) of section 30, which is as follows :

'Provided that when an assessee has presented an appeal under section 21, the appellate authority, on application, may, on such terms and conditions as he may specify, direct that the assessee shall be treated as not being in default.'

The effect of this proviso is only that an assessee shall not be treated as being in default where an appeal has been filed and where a stay order has been granted in that appeal, but clearly only so long as the stay order subsists. It has been above that in this case the stay order came to an end with the dismissal of the appeal on March 5, 1956.

Section 32(1) provides as follows :

'The Collector may, on the motion of the assessing authority, recover any sum imposed by way of penalty under the provisions of section 17 or section 31, or where an assessee is in default, the amount assessed as agricultural income-tax as if it were an arrear of land revenue.'

As seen above, the petitioner being in default on March 5, 1956, as soon as the appeal was dismissed, the tax and penalty became realisable as if the same were an arrear of land revenue.

Then sub-section (2) of section 32 became applicable. That sub-section is mandatory in terms and commands that 'no proceedings for recovery of any sum payable under the Act shall be commenced after the expiration of one year from the date on which any appeal relating to such sum has been disposed of.' In this case, the period of one year expired on March 4, 1957. Admittedly, no proceedings for recovery were commenced before the expiry of that period. The fact that information of the dismissal of the appeal and the consequent vacation of the stay order was not received in the office of the Collector or by the assessing authority cannot override the statutory mandate.

It is unfortunate that a tax, justly due from the petitioner, cannot be enforced against the petitioner under the provisions of the Act. There is an obvious lacuna in the Act but court cannot fill up that lacuna and it must, therefore, be held that the recovery proceedings initiated on January 16, 1958, were beyond limitation and are thus incompetent.

It may be stated that under the parallel provision in the Income-tax Act, namely, section 46, it has been held that the modes of recovery provided by that section are not exhaustive. The section does not take away from the Government the right of enforcing payment by any other method open to it, e.g., the right of suit even after the period of limitation prescribed for proceedings under that section had expired. It is, however, for the Government to make up its mind what it would do in the matter.

The result, therefore, is that the writ petition is allowed. The recovery proceedings under the provisions of the U.P. Agricultural Income-tax Act are quashed. But as I see no equities in favour of the petitioner, I make no order as to costs.

Petition allowed.


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