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Sita Ram and ors. Vs. Tax Recovery Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 2753 of 1973
Judge
Reported in[1983]142ITR356(P& H)
ActsConstitution of India - Articles 226 and 227
AppellantSita Ram and ors.
RespondentTax Recovery Officer and ors.
Appellant Advocate Viney Mittal, Adv.
Respondent Advocate Ashok Bhan, Adv.
Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply..........the tax recovery certificate has been issued against the firm only and not against the individual partner/partners of the firm. it is not disputed that if the partner or the partners are not able to meet the liability, then they can be sent to civil prison in execution of that certificate. in such a case, the citizen is likely to be put into jail pursuant to a tax recovery certificate wherein his name is not mentioned. we, therefore, accept the second contention and hold that an individual partner cannot be proceeded against on the basis of a tax recovery certificate issued in the name of the firm. it shall, however, be open to the department to issue such a certificate against the petitioner or his co-partners for making the impugned recovery.'3. on the above-quoted precedent, the.....
Judgment:

M.M. Punchhi, J.

1. This petition under arts. 226/227 of the Constitution of India would deserve acceptance in view of a Division Bench judgment of this court, to which I was a party, in Nand Lal v. TRO (Civil Writ Petition No. 1944 of 1981) ;decided in limine on September 11, 1981 .

2. For facility of disposal, only a few facts be taken note of. There existed a partnership-firm known as M/s. Vishwa Nath Asa Ram of Jind. It had three partners, one of whom was Asa Ram, father of the petitioners. The firm had incurred an income-tax liability to the tune of Rs. 6,974 for the assessment years 1953-54 to 1955-56. A tax recovery certificate was issued against the firm but was sought to be executed against Asa Ram to the extent of one-half, in the first instance, and later, on his death, against the petitioners. Concededly, no recovery certificate had been issued either against Asa Ram or against his heirs. In a somewhat similar situation, the Division Bench in the afore referred case had taken the following view :

'In the instant case, the tax recovery certificate has been issued against the firm only and not against the individual partner/partners of the firm. It is not disputed that if the partner or the partners are not able to meet the liability, then they can be sent to civil prison in execution of that certificate. In such a case, the citizen is likely to be put into jail pursuant to a tax recovery certificate wherein his name is not mentioned. We, therefore, accept the second contention and hold that an individual partner cannot be proceeded against on the basis of a tax recovery certificate issued in the name of the firm. It shall, however, be open to the Department to issue such a certificate against the petitioner or his co-partners for making the impugned recovery.'

3. On the above-quoted precedent, the impugned orders, annexs. E,F,G and I, passed by the TRO cannot be sustained as also the proceedings taken thereunder for recovery from the petitioners.

4. Accordingly, this petition is allowed, leaving it open to the respondents to take steps for effecting recovery of the tax arrears in accordance with law. In the circumstances of the case, however, there will be no order as to costs.


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