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isha Beevi on Behalf of the Minor Umaiben Beevi and ors. Vs. the Tax Recovery Officer and Addl. P.A. to Collector, Quilon and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtSupreme Court of India
Decided On
Case NumberCivil Appeal Nos. 1159, 1160 and 1489-1499 (NT) of 1970
Judge
Reported inAIR1975SC2135; [1975]101ITR449(SC); (1976)1SCC70; [1976]1SCR681
ActsTravancore Income Tax Act - Sections 66(3); Indian Income Tax Act, 1922 - Sections 18A, 46 and 46(2); Indian Income Tax Act, 1961 - Sections 2(44), 220(2), 221, 222(1) and 297(2); Indian Finance Act, 1950 - Sections 13(1); General Clauses Act - Sections 8(1); Indian Income Tax Rules, 1961 - Rules 11, 48 and 85; Travancore Taxation in Income (Investigation Commission) Act, 1124 - Sections 9(2); Travancore-Cochin Revenue Recovery Act, 1951; Opium and Revenue Laws (Extension of Application) Act, 1950 - Sections 3
Appellantisha Beevi on Behalf of the Minor Umaiben Beevi and ors.;t.K. Usman Musaliar and ors.
RespondentThe Tax Recovery Officer and Addl. P.A. to Collector, Quilon and ors.;The Tax Recovery Officer, Quil
Appellant Advocate D.V. Patel,; M. Ramchandran and; A.S. Nambiyar,;Advs
Respondent Advocate B.Sen, ; B.S. Ahuja and ; S.P. Nayar, Advs.
Prior historyFrom the Judgment and Order dated September 30, 1969 of the Kerala High Court at Eranakulam in W. A. Nos. 492-495, 497-500 and 502-505 of 1969
Excerpt:
.....of recovery proceedings by attachment of certain properties - appellants contended that tax recovery officers have no jurisdiction to start tax recovery proceedings against them and seeking writ of prohibition - in order to substantiate right to obtain writ of prohibition applicant has to demonstrate total absence of jurisdiction to proceed on part of officer or authorities complained against - neither any property sold nor any action taken against person of any of appellants - authorities relied upon by appellants relates only to either sale of properties for recovering amounts which were larger than those which were legally recoverable or arrest of judgment debtor in execution of dues - if any part of property illegally or injustiably attached it does not affect jurisdiction of.....order of attachment of immovable property. office of the tax recovery officer, collector, quilon. dated 10th may, 1958. tosmt. lysha beevi on behalf of minors 1. umaiba beevi 2. mymoon beevi, 3 mariam beevi and 4. safia beevi, kantanchaalil veedu, kannimelcherry, kilokkol loor, quilon,where as you the legal representatives of late shri a thangal kunju musaliar, have failed to pay rupees 50,42,970.34 payable by late shri a. thangal kunju musaliar, cashew exporter, quilon, in respect of certificates mentioned in the attached statement, forwarded by the income tax officers, special investigation/circle, triyandrum and income tax officer, quilon, and the interest payable under section 220(2) of the income tax act. 1961. for the period commencing immediately after the said date.it is ordered.....
Judgment:
ORDER

of Attachment of Immovable property. Office of the Tax Recovery Officer, Collector, Quilon. Dated 10th May, 1958. To

Smt. lysha Beevi on behalf of Minors 1. Umaiba Beevi 2. Mymoon Beevi, 3 Mariam Beevi and 4. Safia Beevi, Kantanchaalil Veedu, Kannimelcherry, Kilokkol loor, Quilon,

Where as you the legal representatives of late Shri A Thangal Kunju Musaliar, have failed to pay Rupees 50,42,970.34 payable by late Shri A. Thangal Kunju Musaliar, Cashew Exporter, Quilon, in respect of certificates mentioned in the attached statement, forwarded by the Income Tax Officers, Special Investigation/Circle, Triyandrum and Income Tax Officer, Quilon, and the interest payable under Section 220(2) of the Income Tax Act. 1961. for the period commencing immediately after the said date.

It is ordered that you, said Isha Beevi be and you are hereby prohibited and restrained until the further order of the undersigned, from transferring or charging the properties as per attached list in any way and that all persons be and that they are hereby prohibited from taking any benefit under such transfer or charge.

Given under my hand and seal at Quilon on this 10th day of May, 1968.

Sd/-Tax Recovery Officer, and Addl. Personal Assistant to Collector Quilon.

7. As regards the authority of the Additional Personal Assistant to the Collector, Quilon, as the tax Recovery Officer, no objection appears to have been taken anywhere relating to his appointment in accordance with the law as the Tax Recovery Officer. The Division Bench of the High Court had held that recovery of the dues for the years 1119 to 1125 ME could not take place under the 1922 Act, and, therefore, no proceedings for their recovery could be taken under the provisions of the 1961 Act. Nevertheless, as proceedings could be taken under the Travancore Income Tax Act, it was argued before it that the 'Peshkar' alone would have been competent to initiate recovery proceedings under Section 66(3) of the Travancore Act. The corresponding officer, according to the appellants, was the Collector and, therefore, the certificates could only, be forwarded, it was submitted, to. the Collector of the District who alone could have initiated the proceedings. The Division Bench overruled this contention on the ground that the proviso to Section 13(1) of the Indian Finance Act, 1950 made it clear that the authority constituted under the provisions of the Act of 1922, empowered to proceed, must be determined by resorting to the provisions of Section 8(1) of the General Clauses Act, which reads as follows:

Where this Act, or any Central Act or Regulation made after the commencement of this Act, appeals and re-enacts, with or without modifications, any provisions or a former enactment then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears be construed as references to the provision so re-enacted.

The 1922 Act was repealed by the 1961 Act. Hence, it held that Section 2(44) of the 1961 Act, read with Section 221 of that Act, were sufficient to enable the Additional Personal Assistant to the Collector to proceed as a Tax Recovery Officer.

8. Section 13, Sub-section (1) of the Finance Act, 1950 laid down:

13 (1) If immediately before the last day of April 1950, there is in force in any Part B State other than Jammu and Kashmir or in Manipur Tripura or Vindhya Pradesh or in the merged territory of Cooch Behar any law relating to income-tax or super-tax or tax on profits of business, that law shall cease to have effect except for the purposes of the levy, assessment and collection of income-tax and super-tax in respect of any period not included in the previous year for the purposes of assessment under the Indian Income-Tax Act, 1922 (XI of 1922) for the yeas ending on the 31st day of March, 1951, or for any subsequent year, or as the case may be, the levy assessment and collection of the tax on profits of business for any chargeable accounting period ending on or before the 31st day of March, 1949:

Provided that any reference in any such law to an officer, authority, tribunal or Court shall be construed as a reference to the corresponding officer, authority, tribunal or Court appointed or constituted under the said Act, and if any question arises as to who such corresponding officer, authority, tribunal or Court is, the decision of the Central Government thereon shall be final.

Section 46 of 1922 Act had also laid down:

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.

Section 2 Sub-section (44) of the Act of 1961 provides:

2(44) 'Tax Recovery Officer' means

(i) A Collector or an additional Collector;

(ii) any such officer empowered to effect recovery of arrears of land revenue or other public demand under any law relating to land revenue or other public demand for the time being in force in the State as may be authorised by the State Government,, by general or special notification in the Official Gazette to exercise the powers of a Tax Recovery Officer.

(iii) any Gazetted Officer of the Central or a State Government who may be authorised by the Central Government, by general or special notification in the Official Gazette, to exercise the powers of a Tax Recovery Officer.

And, Section 222(1) of the 1961 Act lays down:

222(1) When an assessee is in default or is deemed to be in default in making payment of tax, the Income-tax Officer may forward to the Tax Recovery Officer a certificate under his signature specifying the amount of arrears due from the assessee, and the Tax Recovery Officer on receipt of such certificate shall proceed to recover from such assessee the amount specified therein by one or more of the modes mentioned below, in accordance with the rules laid down in the Second Schedule:

(a) Attachment and sale of the assessee's movable property;

(b) Attachment and sale of the assessee's immovable property.

(c) arrest of the assessee and his detention in prison,

(d) appointing a receiver for the management of the assessee's movable and immovable properties.

Hence, even if the 'Peshkar' was the competent officer under the Travancore Income Tax Act, the duties of the Peshkar as the Recovery Officer, would, by operation of the abovementioned provisions of law, automatically devolve upon the Collector or an Additional Collector or upon such officer as may be empower ed by the State Government by a special or General notification in the Official Gazette 'to effect recovery of land revenue or other public demand' under any law relating to land revenue or other public demand. The appellants, not having raised the question at any earlier stage that the Additional Personal Assistant to the Collector was not an officer so authorised, cannot do so in appeal to this Court. However, we leave it open to them to take such an objection, which really raises a question of fact as to whether the required notification was or was not made, before the Tax Recovery Officer himself. If such an objection had been taken there or even in the High Court, the relevant notification may have been produced. We are unable to see any flaw in the. reasoning adopted by the High Court.

9. Another objection as to 5urisdiction relates to the lumping together of demands which were legal as well as those, which could not, according to the assessee, be covered by provisions of law. The High court had held that 11 out of 22 certificates, which had been issued after the death of T.K. Musaliar, were not legal. To that extent the demands against property attached could be said to be not covered by required certificates. Nevertheless, neither had any property been sold nor any action taken against the person of any of the appellants. The authorities relied upon by the appellants related only to either sales of properties for recovering amounts which ware larger than those which were legally recoverable or arrest of the judgment debtor in execution of dues. The cases before us are those of attachment only. If any part of the property is illegally or unjustifiably attached, it does not really affect the jurisdiction of the Tax Recovery Officer to proceed to deal with an objection under Rule 11. The High Court has held that the (appellants can file all their objections under Rule 11 in Schedule 2 of the 1981 Act.

10. It has also been stated on behalf of the Department that it has no objection to the application of the procedure laid down in the Travancore Act for recovery of such dues against the appellants as are realizable from the assets of the deceased. In view of this concession, it is necessary for us to deal with the question whether there was any additional burden or disadvantage imposed upon the appellants by the procedure in the 1961 Act. In view of this concession, the Tax Recovery Officer will only use the procedure in the Travancore Act so far as it is possible to apply it.

11. For the reasons given above, these appeals are hereby dismissed, but, in the circumstances of these, cases, the parties will bear their own costs in this Court.


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