1. By means of this petition under Article 226 of the Constitution, the petitioner, Hari Prasad, challenges the recovery proceedings taken against him for recovery of certain income-tax dues for the assessment years 1943-44 and 1944-45, outstanding against M/s. Pooran Mal Onkar Mal, Deoria.
2. The facts as set out in the petition are that ex parte assessments were made under Section 23(4) of the Indian I.T. Act, 1922, against M/s. Pooran Mal Onkar Mal of Deoria, an HUF, for the assessment years 1943-44 and 1944-45 in respect of income-tax and excess profits tax. These assessments were made on December 31, 1946. The family tree of this HUF was as under:
| | | |
Piramal Gulab Rai Girdhari Lal Pooran Mal
| | | |
Ganga Issueless Hari Prasad |
(Adopted son) |
| | |
Mohan Lal Sohan Lal Hari Prasad
3. Hari Prasad is the petitioner before us. On the basis of the aforesaid assessments two notices of demand dated December 31, 1946, were served on the assessee, HUF. The notice in respect of assessment year 1943-44, stated that a sum of Rs. 53,411-12 annas as specified in the attached form had been determined payable by it and in the notice for theassessment year 1944-45, the sum mentioned was Rs. 40,216-7 annas. According to the petitioner these demand notices were in respect of income-tax dues only and in respect of excess profits tax liability no demand was ever issued by the I.T. Dept. Further, according to the petitioner the aforesaid two notices of demand were not served on the assessee. Later on, a recovery certificate dated March 27, 1947, for a sum of Rs. 2.55,366-14 annas was issued against Seth Mohan Lal Marwari Deoriwala, r/o Pahari Kothi, Ayodhya, District Faizabad, Under Section 46(2) of the Act by the III Addl. I.T.-cum-E.P.T. Officer, Cawnpore, to the Collector, Faizabad, and thereafter a so called duplicate recovery certificate dated August 11, 1951, for a sum of Rs. 2,35,447-7 annas against Pooran Mal Onkar Mal, Deoria, was issued by the ITO, B-Ward, Gorakhpur, to the Collector, Deoria, under the same provision. On the basis of this recovery certificate the Collector, Deoria, attached the petitioner's house situate in the town of Deoria, on July 12, 1953. According to the petitioner he had already executed a sale deed in respect of his share in the said house in favour of Kanhaiya Lal Khandelia on November 26, 1951. Sri Khandelia filed an objection before the Collector, Deoria, against the aforesaid attachment. That objection was rejected. Then, he filed a suit for injunction but withdrew it with permission to file a fresh suit and then he filed suit No. 22 of 1961, in the Court of the Civil Judge, Deoria, for injunction. That suit was dismissed on May 14, 1963. Sri Khandelia filed a First Appeal, being F.A. No. 245 of 1963, against that judgment and decree in this court. That appeal was dismissed on May 5, 1977.
4. On February 28, 1977, the petitioner came up to this court by way of Civil Misc. Writ Petition No. 102 of 1977. That petition was dismissed summarily on May 11, 1977, on the ground that an alternative remedy was available to the petitioner. In the meantime the TRO, Gorakhpur, issued a proclamation of sale on April 6, 1977, and the attached property was sold on May 12, 1977, for a sum of Rs. 2,30,000. The auction purchasers were Deoki Nandan Khandelia and Sitaram Motani, respondents Nos. 5 and 6.
5. The petitioner filed an objection under rr. 9 and 11 of the Second Schedule to the Act before the TRO, Gorakhpur, respondent No. 2, on June 2, 1977. Respondent No. 2 dismissed that objection by his order dated January 31, 1979. The petitioner's appeal under Rule 86(1)(c) of the Schedule to the Act was dismissed by the Tax Recovery Commissioner, Allahabad, respondent No. 1 on December 7, 1979. Thereafter, respondent No. 2 was going to take action for confirmation of sale but before that could be done the petitioner filed the instant petition praying for quashing the entire recovery proceedings, for quashingthe orders dated January 31, 1979, and December 7, 1979, passed by respondents Nos. 2 and 1 respectively and for setting aside the auction sale dated May 12, 1977. There is also a prayer for the issue of a writ of prohibition restraining respondents Nos. 1 and 2 from realizing the impugned tax dues from the petitioner.
6. A counter affidavit has been filed by respondents Nos. 1, 2 and 4. Some of the facts, set out in the petition, are not admitted and have been controverted. It has been averred that at the material time Sri Mohan Lal was the karta of the HUF. M/s. Pooran Mal Onkar Mal and Sohan Lal and Hari Prasad were the other co-partners. Since the HUF did not pay the demand raised, a recovery certificate dated March 27, 1947, was issued by the EPTO-cum-ITO, Kanpur, for Rs. 2,55,366-14 annas to the Collector, Faizabad, in the name of Sri Mohan Lal Marwari Deoriawala, Pahari Kothi, Ayodhya, District Faizabad. The Collector, Faizabad, could not realize the outstanding arrears and hence an amended certificate dated August 11, 1951, was issued to the Collector, Deoria, for Rs. 2,35,447-7 annas by the ITO, B-Ward, Gorakhpur, in the name of M/s. Pooran Mal Onkar Mal, Deoria. The Collector, Deoria, attached the house No. D-36, Mohan Road, Bharauli Bazar, Deoria, on July 12, 1953. Mohan Lal and Sohan Lal had sold portion of this house to Sri Krishna while the petitioner, Hari Prasad, had sold a portion to Kanhaiya Lal Khandelia during the recovery proceedings. These two purchasers filed objections before the Collector, Deoria, which were dismissed. Appeals filed before the Commissioner, Gorakhpur, were also dismissed and then the matter was agitated by them before this court. Here also they failed and it was held that the sale was not bona fide and had been made to avoid payment of tax. Thereafter, auction sale was held on May 12, 1977, against which the petitioner, Hari Prasad, filed an objection under Rule 11 of the Second Schedule to the Act. That objection was subsequently treated as one under Rule 9. Before that the petitioner had filed a writ petition before the High Court which was dismissed.
7. Further, it has been averred that the demand notices were duly served on the assessee, HUF, by registered post. According to the respondents the plea that demand notices had not been served was never raised at any time during this protracted litigation before. An attempt was made to raise this plea for the first time in the First Appeal No. 245 of 1961, by an application for amendment of the plaint in January, 1977. That application was dismissed by the court as mala fide on 10th February, 1977. It has also been averred that the petitioner is in collusion with late Sri Kanhaiya Lal Khandelia, to whom he purported to have sold the house in question, in order to delay and defeat the recovery ofthe impugned dues. It has been averred that the recovery proceedings are perfectly legal and valid.
8. The petitioner has filed a rejoinder to this counter-affidavit.
9. A preliminary objection was raised by Sri Markandey Katju, the learned counsel for the respondents Nos. 1 to 4, that this court should not exercise its jurisdiction under Article 226 of the Constitution with a view to give any relief to the petitioner because an alternative remedy of filing a suit is available to the petitioner. We do not agree. As has been noted above, the petitioner had moved a writ petition, before this court on February 28, 1977. It appears that after the exchange of counter and rejoinder affidavits that petition came up for admission before the court on May 11, 1977. The petition was rejected summarily. The order passed by this court was as under ;
'The basic grievance raised by the petitioner in this petition as also by the application for amendment is that the property which is being sold is not liable to be attached and sold for recovery of the dues of the Hindu undivided family. It is open to the petitioner to file an objection in this regard under Rule 11 of the Second Schedule of the Income-tax Act, and if he failed to satisfy the Tax Recovery Officer he could file a suit for obtaining necessary relief as provided in Rule 11(6) of the Second Schedule of the Income-tax Act. Since an alternative remedy is/was open to the petitioner the petition under Article 226 of the Constitution cannot be entertained. Rejected.
(Sd.)H. N. Seth
(Sd.) M. B. Farooqi.'
10. Thereafter, the petitioner moved an objection under Rule 11 of the Second Schedule to the Act on June 2, 1977. A copy of which is annex. 11 to the writ petition. He moved an amendment application on December 26, 1977, by which he sought to convert his objection under Rule 9 instead of Rule 11 of the Schedule and that application is annex. 12. This application appears to have been allowed because, as is clear from the order passed by the TRO, the original objection was treated as filed under Rule 9 of the Second Schedule. Now, Rule 9 provides for general bar to jurisdiction of civil courts, save where fraud is alleged. It reads:
'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 ofsuch 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.'
11. Thus, in respect of questions relating to the execution, discharge, or satisfaction of a certificate it is only the TRO who has got jurisdiction to decide the same. These matters cannot be determined by a suit. A suit can be filed in a civil court only if fraud is alleged. Against the order passed by the TRO there is an appeal provided under Rule 86 of this Schedule, and thereafter the remedy for the aggrieved party is only to challenge the order under Article 226. Rule 11 of the Schedule provides for investigation by the TRO of any claim or objection made to the attachment or sale of any property in execution of a certificate, on the ground that such property is not liable to such attachment or sale. When a claim or an objection is preferred under Sub-rule (1) of this rule, Sub-rule (6) says that the party against whom an order is made may institute a suit in a civil court to establish the right which he claims to the property in dispute ; but, subject to the result of such suit, if any, the order of the TRO shall be conclusive. In other words, the remedy of appeal is not available against an order passed by the TRO on the objection filed under Sub-rule (1) of Rule 11; the remedy of the aggrieved party is only to institute a suit in a civil court to establish his right in respect of the property in dispute. Since, in the present case, the petitioner's objection was made under Rule 9 of the Schedule, the recourse left to him after his objection was dismissed by the TRO and the appeal against that order by the Tax Recovery Commissioner also failed, was to come to this court by way of writ petition. Thus, the alternative remedy provided in Sub-rule (6) of Rule 11 was not available to the petitioner.
12. Two main submissions were advanced before us on behalf of the petitioner by his learned counsel, Sri S. P. Gupta: firstly, that the recovery certificate dated March 27, 1947, stood withdrawn impliedly or cancelled and it was also not acted upon, and thus was of no avail to the respondents. In the same connection it was urged that this certificate was issued to Sri Mohan Lal, individual, and not to the assessee, HUF. The second submission made was that the recovery proceedings which started on the basis of the second certificate dated August 11, 1951, were invalid for two reasons: (1) the certificate was barred by time under Section 46(7) of the 1922 Act, and (2) it was only the ITO, Kanpur, who could issue the recovery certificate and not the ITO, Gorakhpur. In the same connection it was emphasised that there was absolutely no link between these two certificates and the first, being a nullity, could not save theperiod of limitation for taking proceedings for the recovery of the sum payable. Sri Katju, on the other hand, urged that, in the first instance, this court should not exercise its jurisdiction under Article 226 of the Constitution because the petition is highly belated, because the petitioner has set out false facts in the petition and lastly because the petitioner's conduct has not been clean. Further, according to the learned counsel the recovery proceedings were legally perfect and valid and they had started with the Issue of certificate dated March 27, 1947, and that the second certificate was only in continuation of the same and also purported to amend the first certificate.
13. We shall first examine the case on merits. Since these two certificates were issued in 1947 and 1951, respectively, the provisions of the 1922 Act would be relevant. Section 46 of that Act provides for mode and time of recoery. The provisions of this section so far as they are relevant for the present purpose read as under:
'46. (2) The Income-tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from an assessee, and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue:
Provided that without prejudice to the powers conferred by this subsection, the Collector shall, for the purpose of recovering the amount specified in the certificate, have also all the powers which-
(a) a Collector has under the Revenue Recovery Act, 1890 (1 of 1890),
(b) a civil court has under the Code of Civil Procedure, 1908 (V of 1908), for the purpose of the recovery of an amount due under a decree
(7) Save in accordance with the provisions of Sub-section (1) of Section 42, or of the proviso to Section 45, 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 any demand is made under this Act:
Provided that the period of one year herein referred to shall-
(i) where an assessee has been treated as not being in default under Section 45 as long as his appeal is undisposed of, be reckoned from the date on which the appeal is disposed of ;
(ii) where recovery proceedings in any case have been stayed by any order of a court, be reckoned from the date from which the order is withdrawn ;
(iii) where the date of payment of tax has been extended by an income-tax authority, be reckoned from the date up to which the time for payment had been extended ;
(iv) where the sura payable is allowed to be paid by instalments, from the date on which the last of such instalments was due:
Provided further that nothing in the foregoing proviso shall have the effect of reducing the period within which proceedings for recovery can be commenced, namely, after the expiration of one year from the last day of the financial year in which the demand is made. Explanation.--A proceeding 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, and for the removal of doubts it is hereby declared that the several modes of recovery specified in this section are neither mutually exclusive, nor affect in any way any other law for the time being in force relating to the recovery of debts due to Government, and it shall be lawful for the Income-tax Officer, if for any special reasons to be recorded he so thinks fit, to have recourse to any such mode of recovery notwithstanding that the tax due is being recovered from an assessee by any other mode.'
14. What this provision provides is that when an assessee is in default in making payment of income-tax dues, the ITO may forward to the Collector, a certificate specifying the amount of arrears due from an assesses. On receipt of such certificate the Collector shall proceed to recover that amount as if it were the arrears of land revenue. In doing so, the Collector shall have all the powers which a Collector has under the Revenue Recovery Act or a civil court has under the CPC for the purpose of the recovery of the amount due under a decree. The proceedings for the recovery are required to be commenced within one year from the 1st day of the financial year in which the demand is made under the Act. Further, a proceeding for the recovery shall be deemed to have commenced if some action is taken to recover the whole or any part of the sum within the aforesaid period. There are several modes of recovery specified in this section. They are not mutually exclusive nor do they afiect in any way any other law for the time being in force relating to the recovery of debts due to the Government. What is, therefore, required to be seen in the present case is as to whether this certificate issued on March 27, 1947, was a valid certificate and whether any action was taken to recover the whole or any part of the sum in pursuance of it. Further, it has to be seen as to whether the second certificate issued on August 11, 1951, was in continuation of this certificate or was entirely a fresh certificate.
15. If it is found that it was a fresh certificate, then, certainly, the proceedings taken in pursuance of it would be invalid because the certificate had been issued after the statutory period of limitation.
16. We now proceed to examine the two recovery certificates. The first recovery certificate was issued under Section 46(2) of the 1922 Act on March 27, 1947. It is as under:
Under Section 46(2) of the Indian Income-tax Act, 1922.
INCOME TAX CUM E.P.T. OFFICER CAWNPORE
This is to certify that the sum of Rs. 2,55,366-14 which is due from Seth Mohan Lal Marwari, Deoriawala, son of resident of Pahari Kothi, Ayodhya,
on account of income-tax/super-tax, E.P.T. is in arrear with reference to the provisions of Sub-section (2) of Section 46 of the Indian Income-tax Act, 1922, you are hereby requested to recover the same as if it were an arrear of land Revenue.
III Addh-cum-E.P.T., Income-tax
17. It would be seen that this certificate was issued by the I.T.-cum-E.P.T. Officer, Cawnpore. It was issued to the Collector, Faizabad District. The recovery was to be made from Seth Mohan Lal Marwari, Deoriawala, r/o Pahari Kothi, Ayodhya, District Faizabad. The sum mentioned therein was Rs. 2,55,366-14 annas and it was on account of income-tax/super-tax, E.P.T. arrears. Various objections were raised by learned counsel for the petitioner in regard to this certificate. They were: that it was addressed by the III Addl-cum-E.P.T., ITO, Cawnpore, to the Collector, Faizabad, which he could not do ; that it was in the name of Seth Mohan Lal Marwari and not the assessee-HUF. In other words, it was not a recovery certificate issued against the assessee-HUF, for the reason that under the Act an individual and an HUF constitute different assessable entities. It is also not known as to how it was issued by the ITO, Cawnpore, when the assessing officer was the ITO, Gorakhpur. According to the counsel, therefore, this certificate does not fall under Section 46(2) of the 1922 Act, so as to save limitation for recovery of the dues outstanding against the assessee-HUF. According to the counsel, therefore,
18. it was absolutely a null and void document. We do not agree with these learned submissions and, in our opinion, it was only a case of 'mis-step' and not 'no-step' in aid of the recovery of the outstanding dues.
19. The assessee itself has filed copy of the entry made in the order sheet under date March 27, 1947. The order was made on the record of M/s. Pooran Mal Onkar Nath and it says 'notice of demand not served. Issue R.C. to the Collector, Faizabad, for realisation of tax'. According to the respondent the notice of demand was duly served by registered post. This averment has been disputed by the petitioner. We may not go into that aspect because, in our opinion, not much turns on it. It has been stated in para. 6 of the counter-affidavit filed on behalf of the respondents Nos. 1 to 4 that as the assessee-HUF did not pay the demand raised, recovery certificate dated March 27, 1947, was issued by the EPTO-cum-ITO, Kanpur, for Rs. 2,55,366.14 annas to the Collector, Faizabad, in the name of Seth Mohan Lal Marvari Deoriawala, Pahari Kothi, Ayodhya, District Faizabad. As the Collector, Faizabad, could not realise the arrears outstanding against the defaulters, an amended certificate dated August 11, 1951, was issued to the Collector, Deoria, for Rs. 2,35,447-7 by the ITO, B-Ward, Gorakhpur. It has also been averred in para. 11 that Seth Mohan Lal was the karta of the assessee-HUF and further in para. 14 that a show cause notice was issued by the E.P.T.O., Section G, Cawnpore, on June 28, 1948, to Girdharilal Hari Prasad in respect of the demand outstanding against M/s. Pooranmal Onkarmal of which Sri Hari Prasad acknowledged the receipt of that notice in his letter dated July 7, 1948. A copy of the aforesaid letter dated July 7, 1948, is annex. C-A-3 and a copy of the letter of Hari Prasad is annex. C-A 4.
20. The respondents have also filed a copy of the letter dated 11th August, 1948, from the ITO, E.P.T. Circle, Cawnpore, to the Collector, Faizabad, which shows that the Kothi and the attached temple were attached in pursuance of the said recovery certificate and the pujari of that temple filed an objection against that attachment. Further information was given that Mohan Lal Marwari had certain properties in Deoria and the details of the same were given. It appears that ultimately the Deputy Commissioner, Faizabad, returned the papers to the ITO, E.P.T. Circle, Kanpur, with letler dated December 4, 1948, saying that Mohan Lal resides in Deoria district and action may be taken to recover the amount through the Collector, Deoria. Both these letters are annexed to the counter affidavit.
21. The question for consideration is as to whether this recovery certificate is null and void because of the defects pointed out on behalf of the petitioner. In Ram Charan Lal Ram Narain v. ITO : 56ITR316(All) , a learned single judge of this court took the view that under Section 46(2) of the1922 Act read with Section 5 of the Revenue Recovery Act, 1890, an ITO can make a request for recovery of arrears of income-tax only to the Collector of the District in which his office is situated. He cannot make a request to the Collector of another district. Now, in our opinion, this decision can be distinguished on the ground that it was based on a consideration of the provisions contained in Sections 3 and 5 of the Revenue Recovery Act, 1890. Sub-section (1) of Section 3 of that Act reads:
'3. (1) Where an arrear of land Revenue, or a sum recoverable as an arrear of land revenue, is payable to a Collector by a defaulter being or having property in a district other than that in which the arrear accrued or the sum is payable, the Collector may send to the Collector of that other district a certificate in the form as nearly as may be of the Schedule, stating--.....'
22. Evidently, this provision could not be applicable to the instant case because here the amount was not payable to the Collector by a defaulter. It was payable to the ITO by a defaulter.
23. Section 5 of that Act reads:
'5. Where any sum is recoverable as an arrear of land Revenue by any public officer other than a Collector or by any local authority, the Collector of the district in which the office of that officer or authority is situate shall, on the request of the officer or authority, proceed to recover the sum as if it were an arrear of land revenue which has accrued in his own district, and may send a certificate of the amount to be recovered to the Collector of another district under the foregoing provisions of this Act, as if the sum were payable to himself.'
24. Now, Sub-section (2) of Section 46 of the 1922 Act does not make the provisions of the Revenue Recovery Act of 1890 applicable to proceedings for recovery under this Act. All that the proviso to this sub-section says is that the Collector shall for the purpose of recovering the amount specified in the certificate have also all the powers which the Collector has under the Revenue Recovery Act, 1890. For the matter of that, Clause (b) of that proviso vests the Collector with the powers which a civil court has under the CPC, also for the purpose of the recovery of an amount mentioned in the certificate. That does not mean that the provisions of the CPC applicable for the recovery of the amount due under the decree in terms become applicable to proceedings for recovery of arrears under the I.T. Act. In our opinion, therefore, this decision would not apply to the instant case.
25. Another authority to which our attention was invited on behalf of the petitioner is a decision of this court in Baladin Ram Kalwar v. ITO : 62ITR392(All) . The ratio of that decision is that where the noticesof demand were against the HUF, the recovery certificates issued against the karta in his individual capacity were without jurisdiction. So far as this proposition of law is concerned, there can be no dispute about it. Section 45 of the 1922 Act declares that an assessee failing to pay the tax demanded within the time mentioned in the notice of demand will be deemed to be in default. An 'assessee' is denned in Section 2(2) as 'a person by whom tax is payable'. In a case where the assessee is an undivided Hindu family and if default is committed in the payment of the tax due, it is a default committed by the HUF. It cannot be said that the default has been committed by the karta. However, in our opinion, the matter has to be examined in proper perspective with a reference to the antecedent and contemporary circumstances. We have already mentioned above that the order for the issue of recovery certificate was made in the file of the assessee-HUF. There is no dispute that Seth Mohan Lal was the karta of the assessee-HUF at the relevant time. It is correct that in the certificate he was not described as karta of the family. We find that in the appellate order of the Tax Recovery Commissioner dated December 7, 1979, copy of which is annex. 18, to the writ petition, it has been stated in para. 9:
'It is also evident from the record that the appellant, Sri Hari Prasad made an application dated 19-9-1940, requesting that the income-tax dues (past and future) should be realised from Sri Mohan Lal Marwari and he (Sri Hari Prasad) had nothing to do with the income-tax demand. '
26. It was in these circumstances that the certificate was issued in the name of Sri Mohan Lal Marwari. In our opinion, it would be merely a case of mistake or irregularity that the status of Mohan Lal as karta was not specified in the recovery certificate. It would not render the certificate null and void.
27. The decision in Kapurchand Shrimal v. TRO : 72ITR623(SC) , will also not be of much assistance to the assessee. In that case proceedings were taken to recover the tax due by the HUF by arrest of the manager of the family. It was ruled that the manager by virtue of his status is competent to represent the HUF, but on that account he cannot for the purpose of Section 222 of the Act of 1961 be deemed to be the assessee when the assessment is made against the HUF and certificate for recovery is issued against the family.
28. We find that there is a Division Bench case of the Patna High Court which is very much apposite to the controversy under consideration. In Raja Bahadur Kamakshya Narain Singh v. ITO : 74ITR563(Patna) , the income-tax file of the petitioner-assessee was transferred from the ITO, Hazari-bagh, to the ITO, Patna, then to the ITO, Ranchi, and then again to the ITO, Central Circle, Calcutta, who made the assessment order on the petitioner on September 18, 1954, and started certificate proceeding on March 20, 1955. On the petition of the petitioner, the Supreme Court, on March 20, 1956, set aside the order of transfer to the officer at Calcutta, and the certificate proceeding at Calcutta was dropped. The file was re-transferred to the officer at Ranchi, who sent a requisition to the certificate officer at Ranchi to collect the amount of the demand. Later, the file was transferred to the officer at Hazaribagh who amended the certificate by reducing the amount of the demand. The petitioner filed a writ petition in the High Court to quash the certificate proceeding at Ranchi. One of the contentions urged was that under Section 46(2) of the 1922 Act the ITO may forward to the Collector a certificate under his signature for recovery of the arrears of tax due from an assessee, but such a certificate must be sent to the Collector of the district wherein is situated the office of the particular ITO forwarding the certificate. Hence, the ITO, Hazaribagh, had no jurisdiction to amend the certificate upon which the certificate case had been started at Ranchi. This contention was repelled and it was ruled that the ITO of any place in Bihar is competent to forward a certificate under Section 46(2) of the 1922 Act to any Collector of the State, if he proceeds to realise the arrears of tax by institution of proceedings under the Bihar and Orissa Act, and not under the Revenue Recovery Act, 1890.
29. In the present case as well there is nothing to indicate that the proceedings to realise the arrears of tax were instituted under the Revenue Recovery Act. That being so, the impugned certificate did not suffer from any illegality, inasmuch as it was forwarded by the ITO, Cawnpore, to the Collector, Faizabad. We are, thus, of the view that this certificate merely suffered from an irregularity inasmuch as the status of Seth Mohan Lal Marwari is not mentioned. However, if the certificate is examined in the background of the facts obtaining before its issue, it can safely be said that it was issued against him in his capacity as karta of the assessee-HUF and not as individual. It did not suffer from any other legal infirmity and, therefore, it was not a void document as urged on behalf of the petitioner. It was certainly covered by the provisions contained in Sub-section (2) of Section 46 of the I.T. Act (1922).
30. Now, we come to the second certificate, which was issued on August 11, 1951, with a view to find out as to whether there is any link between these two certificates. A copy of this certificate is annex. 8 to the writ petition. It is as under :
CERTIFICATE Under Section 46(2) of I.T. Act, 1922,
Income-tax Officer, ' B ' Ward, Gorakhpur.
To The Collector, Deoria.
This is to certify that sum of Rs. 2,35,447-14 annas as detailed on overleaf which is due from Pooranmal Onkar Mal, Deoria, resident of Deoria, on account of I.T., S.T. & Penalty is in arrear with reference to the provision of Sub-section (2) of Section 46 of Income-tax Act, 1922.
You are requested to recover the same as if it were an arrear of land revenue:
31. This certificate was issued by the ITO, B-Ward, Gorakhpur, while the earlier one had been issued by the III Addl. E.P.T-cum-ITO, Cawnpore. It was issued to the Collector, Deoria, and was in the name of Pooranmal Onkar Mal, Deoria. The amount for ^hich it was issued was Rs. 2,35,447-14 annas, and the details of that amount were also specifically given. According to the learned counsel for the petitioner there was absolutely no link between these two certificates because of the differences noted above. The main effort of the learned counsel was again to show that the earlier certificate was a nullity and was not a recovery certificate contemplated by Section 46(2) so as to save the limitation of one year provided in Sub-section (7) of that section. We do not find much force in this submission either. It is correct that this certificate was issued by a different ITO but the challenge of the petitioner is not that that ITO had not come to seize of the matter at the relevant time. The fact that it was issued by the ITO to the Collector, Deoria, would also not render it invalid for the reasons already discussed. The fact that the amount mentioned in the two certificates was different would also not go to show that there was no link between them. We have already indicated above that the earliercertificate was issued in the name of the karta of the family though the status was not specified therein but on a consideration of the facts preceding the issue it becomes quite clear. The 'duplicate' certificate was issued in the name of the assessee-HUF. The Explanation to Sub-section (7) contains a deeming clause that a proceeding for the recovery of arrears shall be deemed to have commenced if some action had been taken to recover the whole or any part of it within the period prescribed by the main provision. The expression used in the Explanation is 'some action'. This expression has been liberally construed to mean forwarding for arrears of tax to the Collector under Section 46(2) of the Act and not necessarily of the institution of the certificate case by the certificate officer concerned (See Aruna Devi Jajodia v. Collector of Madras : 21ITR349(Mad) , Kashiram Agarwalla v. Collector of 24-Parganas : 33ITR800(Cal) , Lal Bhan Pratap Narain Bahadur Pal v. State of Uttar Pradesk : 46ITR247(All) , and Raja Bahadur Kamakshya Narain Singh v. ITO : 74ITR563(Patna) . In the instant case apart from the forwarding of certificates of arrears of tax to the Collector, proceedings for recovery had actually been taken. As has been noted above the Kothi along with the temple was attached and objection to that attachment was filed by the pujari of that temple. It is not on record as to what happened ultimately in that matter, because, shortly after the papers were returned by the Collector, Faizabad, to the ITO, Kanpur, it appears that subsequently the jurisdiction of the case was transferred to the ITO, Gorakhpur. Hence he issued this amended certificate on August 11, 1951, to the Collector, Deoria. Thus, in the first instance no rigour is to be put on the language used in this Explanation so as to justify a contention that unless some positive action is taken on the certificate, it cannot be said that 'some action' has not been taken in the proceeding. Mere forwarding of a certificate for arrears of tax to the Collector under this provision would amount to an action to save limitation because that would be an action to recover the whole or any part of the arrear. If such an action is taken within the prescribed period of the main provision the limitation is saved. In the present case we find that some positive action was taken and thus, clearly limitation prescribed by the main provision was saved. The subsequent certificate, therefore, is not barred by time on any view whatsoever.
32. Sri Gupta reminded us of the scope of the jurisdiction under Article 226 of the Constitution. We are very much conscious of it and, as ruled in M. Naina Mohammad v. K. A. Natarajan : 1SCR102 :
'The boundaries of the High Court's jurisdiction under Article 226 are clearly and strongly built and cannot be breached without risking jurisprudential confusion. The power is supervisory in nature.....'
33. It is established, therefore, that the power of this court in exercise of jurisdiction under Article 226 of the Constitution is supervisory and not appellate in nature. We find that the Tax Recovery Commissioner in his appellate order took notice of two important aspects in the case, and they were stressed as well before us by the learned standing counsel. They are : firstly, that the writ petition is highly belated and secondly that the conduct of the petitioner has not been such so as to entitle him to the reliefs claimed.
34. We shall examine these two aspects a little closely. As noted above, the first recovery certificate was issued on March 27, 1947, and the other on August 11, 1951. Sri Mohan Lal was the karta of the assessee-HUF and Hari Prasad the present petitioner and Sohan Lal were the coparceners. During the course of the recovery proceedings the karta as also the two coparceners of the assessee-HUF sold portions of the house property. The petitioner sold his portion to Kanhaiya Lal Khandelia on November 26, 1951, i.e., after the issue of the second certificate but before the attachment of this house property by the Collector, Deoria. On July 12, 1953, Sri Khandelia filed an objection before the Collector, Deoria, against this attachment. The objection was rejected and he then filed a civil suit for injunction ; but, withdrew it with permission to file a fresh suit. Then, he filed Suit No. 22 of 1961, in the court of civil judge, Deoria, for injunction. That suit was dismissed on May 14, 1963, and the first appeal against that judgment and decree was dismissed by this court on May 5, 1977. A copy of that appellate judgment is annex. C-A 1 to the counter affidavit. The view taken by this court was that the sale deed executed by Hari Prasad, petitioner, was a collusive document and had been made with a view to defraud the I.T. Dept. The finding recorded was :
'We accordingly agree with the court below that the transaction of sale was fictitious and sham and no title passed to the plaintiff under it.'
35. Thereafter, the attached property was sold on May 12, 1977. In the meantime on February 28, 1977, the petitioner as well came up to this court by way of Civil Misc. Writ Petition No. 102 of 1977. That petition was dismissed summarily on May 11, 1977. This course of events goes to show that it was for the first time on February 28, 1977, that the petitioner protested in these recovery proceedings. Till then he did not make any attempt to challenge the proceedings either by way of an objection under Rule 9 or Rule 11 of the Second Schedule to the Act. If the petitioner had any objection relating to the execution, discharge or satisfaction of the certificate he should have filed an objection under Rule 9 atthe earliest opportunity. The objections now taken do relate to execution, discharge or satisfaction of the certificate. Apart from this, since he had already executed a sale deed of his share in the house in dispute before it was actually attached, he should have filed an objection under Rule 11 on the ground that he having no interest in the property, it was not liable to attachment or sale. It is clear that the petitioner was guilty of laches for which no explanation whatsoever is forthcoming, and on this ground alone we would be justified in dismissing the petition.
36. In State of Orissa v. Arun Kumar Patnaik : AIR1976SC1639 , where the appointment of one K was gazetted on March 14, 1962 and the notification dated November 15, 1968, showed K's confirmation as on February 27, 1961 and that of the petitioner's on May 2, 1962 and till May 29, 1973, when the writ petitions were filed, the petitioners did nothing except to file a representation to Government and a memorial to Governor on April 16, 1973, it was held that there was long and inexplicable delay and the grievance was 'too stale to merit redress'. It was emphasised that an extraordinary jurisdiction should not be exercised in such an abject disregard of consequences and in favour of persons who were unmindful of their so-called rights for many long years.
37. Similarly, in State of Orissa v. Sri Pyarimohan Samanturay, : AIR1976SC2617 , it was found that even though a cause of action arose to the petitioner as far back as 1962, on the rejection of his representation on November 9, 1962, he allowed some eleven years to go by before filing the writ petition. There being no satisfactory explanation of the inordinate delay, the view taken was that the petition was liable to be dismissed. In the instant case, the cause of action to the petitioner arose on March 27, 1947, when the first recovery certificate was issued and again on August 11, 1951, when the amended certificate was issued and then on July 12, 1953, when the petitioner's house property was attached. It was, however, only on February 28, 1977, when the so called transferee had lost in his attempt to stall the recovery, that he came forward with a petition challenging the recovery before this court. Evidently there was inordinate and inexplicable delay and the petitioner cannot be allowed the reliefs claimed.
38. We may also refer to another decision of the Supreme Court in Nail Subedar Lachhman Dass v. Union of India : 1977CriLJ1574 , where an inexplicable delay of four years from the date of action had occasioned, was held sufficient to merit dismissal of the petition summarily. We are thus inclined to agree with the submission made by Sri Katju that on account of the inordinate and inexplicable delay spreading over a period of thirty years the petitioner has dissentitled himself to the reliefs claimed.
39. His conduct also disentitles him to the reliefs claimed. It has been found as a fact by this court in First Appeal No. 243 of 1962, to which reference has already been made above, that the sale deed executed by the petitioner in favour of Sri Kanhaiya Lal Khandelia was a collusive document. Various circumstances have been adverted to in the judgment and it has been held that the transaction of sale was fictitious and sham and no title passed to the transferee under it. Thus, the attempt of the petitioner all along has been to defeat the recovery proceedings. The transaction has been found tainted with collusion and fraud. These are serious facts and certainly the conduct of the petitioner, reflected by course of events, disentitles him to the reliefs claimed. In Major Chandra Bhan Singh v. Latafat Ullah Khan : 1SCR891 , the court had occasion to consider this aspect. In that case the petitioners had themselves unlawfully invoked the review jurisdiction of the competent officer under the Evacuee Interest (Separation) Act, 195 1 which did not exist, to their advantage and to the disadvantage of the appellant. It was held that the petitioners could not be heard to say, when the department invoked the self same jurisdiction on important grounds, that review orders of the competent officer were void for want of jurisdiction and must be set aside for that reason. It was held that the conduct of the writ petitioners was, therefore, such as to disentitle them of certiorari and the High Court erred in ignoring that important aspect of the matter, even though it was sufficient for the dismissal of the writ petition. The present case stands on a much stronger footing because it has been found as a fact that the petitioner made a fradulent and collusive transfer of his share in the house property with a view to defeat the recovery. In our opinion, this conduct of the petitioner, therefore, clearly disentitles him to certiorari.
40. We do not propose to enter into the merits of the contention urged by Sri Katju that the petitioner cannot be granted any relief also for the reason that he stated false facts in the writ petition. That is, in regard to petitioner's allegations in para. 3 of the writ petition that no notice of demand in respect of income-tax dues was ever served on the assessee-HUF. The respondents in their counter-affidavit have asserted that such notice was in fact served. Since it becomes a disputed question of fact, we cannot go into it and, therefore, we leave this aspect without expressing any opinion on it.
41. To conclude, therefore, for reasons discussed above, the petition fails and isdismissed with costs. The stay order dated January 18, 1980, confirmed by order dated July 24, 1980, is discharged.