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The Lakshmi Commercial Bank Ltd. Vs. B. Dharam Singh and Co. (P) Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtDelhi High Court
Decided On
Case NumberElection First Appeal No. 78 of 1969 and Civil Miscellaneous Appeal No. 292 of 1970
Judge
Reported inILR1972Delhi755B; [1974]94ITR416(Delhi)
ActsIncome tax Act, 1961 - Sections 226(3); Code of Civil Procedure (CPC), 1908 - Sections 47
AppellantThe Lakshmi Commercial Bank Ltd.
RespondentB. Dharam Singh and Co. (P) Ltd. and ors.
Advocates: Ved Vyas,; M.L. Bajaj,; R.L. Roshan and;
Cases Referred and Ningappa Neelappa Katti v. Adiveppa Tuppad and
Excerpt:
.....222 to 225 and the notice shall have the same effect as an attachment of a debt by the tax recovery officer in exercise of his powers under section 222. according to para 9 of the second schedule, every question arising between the income tax officer and the defaulter or his representatives relating to the execution, discharge or satisfaction of a certificate duly filed under the act shall be determined not by suit, but by order of the tax recovery officer before whom any such question arises. it would thus appear that in respect of such recoveries, to the extent permitted by the act, the jurisdiction of the civil court has been excluded save where fraud is alleged. the jurisdiction of the civil court has been excluded obviously to avoid conflict due to competing jurisdiction in..........income tax dues- recovery certificates had been issued by various income tax officers to the tax recovery officer, delhi for attachment of this very property. the prayers made, in the alternative were : (1) that the proclamation of sale dated 17-12-1968 be modified by converting the proclamation of sale by discharging the government dues (there was a statement that apart from the mortgage to the decree holder there was no other lien on the property); (2) that in the event however, of the sale taking place after payment of secured debt whatever balance that remained after payment of income tax arrears may alone be paid to the decree holder. the auction sale was postponed and notice of the application (i.a. 353 of 1969) was ordered to the decree holder who contested the claim of the.....
Judgment:

S. Rangarajan, J.

(1) The appellant is the Lakshmi Commercial Bank Ltd. which obtained a mortgage decree on the basis of an award which was made a rule of court against Messrs B. Dharam Singh & Co. (P) Ltd and two of its Directors Jagjit Singh Sawhney and Gurcharan Singh Sawhney.

(2) Execution Application No. 8 of 1968 was moved by the decree-holder for Realizing the decretal amount by sale of the mortgaged property. The property was ordered to be sold; 25-2-1969 was fixed as the date of the public auction.

(3) The Union of India brought to the notice of the executing Court on 18-2-1968, by means of I.A. No. 353/69, that there were huge arrears of income tax against the judgment debtor in respect of which action had been taken for recovery of income tax dues- recovery certificates had been issued by various Income Tax Officers to the Tax Recovery Officer, Delhi for attachment of this very property. The prayers made, in the alternative were : (1) that the proclamation of sale dated 17-12-1968 be modified by converting the proclamation of sale by discharging the government dues (there was a statement that apart from the mortgage to the decree holder there was no other lien on the property); (2) that in the event however, of the sale taking place after payment of secured debt whatever balance that remained after payment of income tax arrears may alone be paid to the decree holder. The auction sale was postponed and notice of the application (I.A. 353 of 1969) was ordered to the decree holder who contested the claim of the Income Tax Department.

(4) On 7-10-1969 the Income Tax Officer issued notices under section 226(2) of the Income-Tax Act to some of the tenants occupying the mortgaged property. None of the tenants filed any affidavit before the Income Tax Officer in response to the said notice but kept quiet. The Income Tax Officer transferred, on 13-10-1969, the proceedings to the Tax Recovery Officer; certificates as required by the Act were also filed by the Income Tax Officer on the same day.

(5) I.A. No. 787 of 1969 was filed by the decree holder raising objections to the notices issued under section 226 of the Income Tax Act and to enable the appellant bank to collect the rents as before. This application was dismissed by Prakash Narain, J. on 22-5-1969. A petition to review the same (R.P. 4 of 1969) was also dismissed by the learned single Judge. The present appeal is directed against the said order of dismissal, dated 22-5-1969, of I.A. 787 of 1969. A number of applications to nearly the same effect as I.A. 787/69, were filed by the appellant bank; they will be noticed later.

(6) It may be necessary to notice even at the outset that an application for winding up Messrs B. Dharam Singh & Co. (P) Ltd. had been made on 29-3-1968; it was ordered to be wound up on 9-2-1970.

(7) The learned single Judge noticed, in the order which he passed on 22-5-1969, that according to the award which was made a rule of the Court the decree holder was to collect a sum of Rs. 14,46,841.86 p. with effect from 31-8-1966 carrying interest at 11% per annum with half yearly rests from 1st September, 1966 from the judgment debtor. According to the award the decree holder bank always had and shall always have a first lien on all the rents payable by the tenants and occupants of the mortgaged property; the debtors were also bound to get the attornment from occupants and tenants in favor of the Bank. There was not even an assertion made concerning such attornment. The learned single Judge held that the award by itself did not operate to terminate the relationship of landlord and tenant between the tenants and the judgment debtor since the tenants were not parties to that award; in other words, further attornment by the tenants to the decree holder was necessary to put an end to the relationship between the tenants and the judgment debtor. The statutory notices issued by the Income Tax Officer to the tenants under section 226(3)(vi) of the Income Tax Act were within the statutory powers of the Income Tax Officer who issued the said notices.

(8) In the order dismissing the review application the learned single Judge reiterated his observations about the absence of even an averment concerning attornment by the tenants to the decree holder. Even in I.A. 1050/69, filed after the dismissal of I.A. 787/69, all that had been urged was that there was an implied attornment by reason of the payment of rents by tenants to the appellant Bank. In this view he denied to the appellant Bank the opportunity, which was sought for, to let in evidence to show that the rents were being paid by the tenants to the decree holder Bank but not to the judgment debtor. The contention that the Income Tax Department, which had already submitted to the jurisdiction of the Court by moving I.A. 353 of 1969, had no power to issue notice under section 226 of the Income Tax Act thereafter without the directions of the Court was repelled. It was further observed that the mere creation of the lien in favor of the decree holder by means of the award would not tantamount (in the absence of the tenants actually attorning the decree holder) to rents not becoming due or payable to the judgment debtor (landlord). The learned single Judge considered that the payment of rent, if any, and even an undertaking to pay rent, would not amount to attornment.

(9) Another application which had been moved (I.A. 1551 of 1969) for appointment of a receiver under Order 40, rule I, to collect the rents from the tenants of the mortgaged property and which was heard along with the review petition was also dismissed No appeal has been filed against the order passed in I.A. 1551 of 1969.

(10) When the present appeal was filed Section 10 of the Delhi High Court Act, 1966 alone was invoked. But it has been decided by a Full Bench of five Judges of this Court in University of Delhi v. Hafiz Mohd. : AIR1972Delhi102 that as against orders passed by single Judges of this Court in the exercise of ordinary civil jurisdiction appeals are confined to those provided under Order 43 rule I read with section 104 of the Code of Civil Procedure. Shri Ved Vyas questions the correctness of this decision, but the said decision is binding upon us-both of us were parties to this decision.

(11) It is contended by Shri R. L. Roshan, learned counsel for Respondent No. 4, that the decree-holder Bank is at best only in the position of a rival decree-bolder to the Income Tax Department, and for that reason no appeal lies under section 47 of the Code of Civil Procedure either. He also contends that no ordinary civil proceeding is maintainable to question the validity of the notices issued under section 226(3) of the Income Tax Act by the Income Tax Officer and the further proceeding taken by the Tax Recovery Officer.

(12) The latter contention may be examined first. It would be necessary for this purpose to notice the following provisions of the Income Tax Act: Chapter Xvii of the Act deals with the collection and recovery of taxes. Section 222, in that Chapter, enables the Income Tax Officer to forward to the Tax P.ecovery Officer a certificate under his signature specifying the amount of arrears due from the assessed when an assessed is in default or is deemed to be in default in making a payment of tax. The Tax Recovery Officer shall, on receipt of such certificate, proceed to recover from such assessed the amounts specified therein by one or more of the modes mentioned below, in accordance with the rules laid down in the Second Schedule of the Act: (a) attachment and sale of the assessed's movable property; (b) attachment and sale of the assessed's immovable property; (c) arrest of the assessed and his detention in prison; (d) appointing a receiver for the management of the assessed's movable and immovable properties. Sub-section (2) of Section 222 provides that the Income Tax Officer may issue a certificate under sub-section (1), as aforesaid, notwithstanding that proceedings for recovery of the arrears by any other mode have been taken.

(13) The other modes of recovery are described in Section 226. Notwithstanding the issue of a certificate to the Tax Recovery Officer under Section 222, the Income Tax Officer may recover the tax by any one or more of the modes provided in the section. The following provisions, made in sub-section (3), are material:

'(3)(I)The Income-tax Officer may, at any time or from time to time, by notice in writing require any person from whom money is due or may become due to the assessed or any person who holds or may subsequently hold money for or on account of the assessed, to pay to the Income-tax Officer either forthwith upon the money becoming due or being held or at or within the time specified in the notice (not being before the money becomes due or is held) so much of the money as is sufficient to pay the amount due by the assessed in respect of arrears or the whole of the money when it is equal to or less than that amount. (ii) A notice under this sub-section may be issued to any person who holds or may subsequently hold any money for or on account of the assessed jointly with any other person and for the purposes of this sub-section, the shares of the joint- holders in such account shall be presumed, until the contrary is proved, to be equal. (iii) ***** (iv) Save as otherwise provided in this sub-section, every person to whom a notice is issued under this sub-section shall be bound to comply with such notice, and, in particular. where any such notice is issued to a post office, banking company or an insurer, it shall not be necessary for any pass book, deposit receipt, policy or any other document to be produced for the purpose of any entry, endorsement or the like being made before payment is made, notwithstanding any rule, practice or requirement to the contrary. (v) Any claim respecting any property in relation to which a notice under this sub-section has been issued arising after the date of the notice shall be void as against any demand contained in the notice. (vi) Where a person to whom a notice under this subsection is sent objects to it by a statement on oath that the sum demanded or any part thereof is not due to the assessed or that he does not hold any money for or on account of the assessed, then, nothing contained in this sub-section shall be deemed to require such person to pay any such sum or part thereof, as the case may be, but if it is discovered that such statement was false in any material particular, such person shall be personally liable to the Income-tax Officer to the extent of his own liability to the assessed on the date of the notice, or to the extent of the assessed's liability for any sum due under this Act, whichever is less. (vii) * * * * (viii) * * * * (ix) * * * * (x) If the person to whom a notice under this sub-section is sent fails to make payment in pursuance thereof to the Income-tax Officer, he shall be deemed to be an assessed in default in respect of the amount specified in the notice and further proceedings may be taken against him for the realisation of the amount as if it were an arrear of tax due from him, in the manner provided in sections 222 to 225 and the notice shall have the same effect as an attachment of a debt by the Tax Recovery Officer in exercise of his powers under section 222. (4) * * * * (5) * * * *'

Section 232 is also important:

'232.The several modes of recovery specified in this Chapter shall not affect in any way- (a) any other law for the time being in force relating to the recovery of debts due to Government; or (b) the right of the Government to institute a suit for the recovery of the arrears due from the assessed; and it shall be lawful for the Income-tax Officer or the Government, as the case may be, to have recourse to any such law or suit, notwithstanding that the tax due is being recovered from the assessed by any mode specified in this Chapter'.

(14) The Second Schedule of the Act lays down the procedure for recovery of tax. Para I (b) defines a 'defaulter' as the assessed mentioned in the certificate. According to para 2 when a certificate has been received by the Tax Recovery Officer from the Income Tax Officer for the recovery of arrears under this Schedule, a notice shall be served upon the defaulter asking him to pay the amount specified in the Schedule within 15 days from the date of service on pain of steps being taken to realise the amount under the said Schedule if he defaulted. Para 9 provides as follows:

'9.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 of 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'.

It would be necessary at this stage to refer to the notices issued by the Income Tax Officer on 17-4-1969 to the various tenants. It would be sufficient to set out the terms of one of them :

'NOTICEunder Section 226(2) of the Income-tax Act, 1961 Income Tax Office 17-4-1969 To Name: M/s. Madras Rubber Factory, Ltd. Address: 3/4 Asaf Ali Road, New Delhi.

A sum of Rs. 25,12,402.00 is due from M/s. B. Dharam Singh & Co. (Private) Ltd. Asaf Ali Road, New Delhi on account of Income-tax/super-tax/penalty/interest/flne. You are hereby required under section 226(3) of the Income-tax Act, 1961 to pay to me forthwith any amount due from you to or, held by you for or on account of the said M/s. B. Dharam Singh & Co. (Private) Ltd., Asaf Ali Road, New Delhi up to the amount of arrears shown above, and also request you to pay any money which may subsequently become due from you to him/them or which you may subsequently hold for or on account of him/them up to the amount of arrears still remaining unpaid, forthwith on the money becoming due or being held by you as aforesaid as such payment is required to meet the amount due by the tax payer in respect of arrears of income-tax/super-tax/penalty/interest/fine. I am to say that any payment made by you in compliance with this Notice is in law deemed to have been made under the authority of the tax payer and my receipt will constitute a good and sufficient discharge of your liability to the person to the extent of the amount referred to in the receipt.

(15) I am to observe that if you discharge any liability to the tax-payer after receipt of this Notice, you, will be personally liable to me as Income-tax Officer, Central Circle Iii, Delhi to the extent of the liability discharged: or to the extent of the liability of the tax-payer for tax/penalty/interest/fine referred to in the preceding para, whichever is less.

(16) Further if you fail to make payment in pursuance of this Notice to me as Income-tax Officer, you shall be deemed to be an assessed in default in respect of the amount specified on the notice and further proceedings may be taken against you for the realisation of the amount as if it were an arrear of tax due from you in the manner provided in sections 222 to 225 of the Income-tax Act, 1961 and this notice shall have the same effect as an attachment of a debt by the Tax Recovery Officer in exercise of his powers under section 222 of the said Act.

(17) The necessary chalans for depositing the money to the credit of the Central Government may be obtained from me.

Acopy of this Notice is being sent to M/s. B. Dharam Singh & Co. (Private) Ltd., Asaf Ali Road, New Delhi (Tax-payer). 17-4-1969 sd/- lncome Tax Officer Central Circle Iii New Delhi. C. C. to M/s. B. Dharam Singh & Co. (P) Ltd. Sd..00 I.T.O. C.C. III. Delhi.'

No reply having been received the certificate was sent by the Income Tax Officer to the Tax Recovery Officer on 13-10-1969.

(18) It would be necessary to read para 9 of Second Schedule with Section 226(3)(x) of the Act which provides that the person to whom a notice is issued under sub-clause (3) shall be deemed to he an assessed in default in respect of the amount specified in the notice; if he failed to make the payment in pursuance thereof further proceedings could be taken against him for realisation of the amount as if it were an anear of tax due from him in the manner provided in sections 222 to 225 and the notice shall have the same effect as an attachment of a debt by the Tax Recovery Officer in exercise of his powers under section 222. According to para 9 of the Second Schedule, every question arising between the Income Tax Officer and the defaulter or his representatives, relating to the execution, discharge or satisfaction of a certificate duly filed under the Act shall be determined not by suit, but by order of the Tax Recovery Officer before whom any such question arises. It would thus appear that in respect of such recoveries to the extent permitted by the Act the jurisdiction of the Civil Court has been excluded save where fraud is alleged; no fraud has been alleged in this case. None of the tenants to whom the notices were issued in the above-said manner having filed any affidavit staling that no amount was due by any of them to the landlord further proceedings could be taken according to the above noticed provisions. The jurisdiction of the Civil Court has been excluded obviously to avoid conflict due to competing jurisdiction in this respect.

(19) The further question that has been raised on this aspect is that by reason of the application made by the Union of India to the Court executing the decree based upon the award in favor of the appellant there has been submission to the jurisdiction of the civil Court and thereforee the statutory right of the Income Tax Officer to proceed under the aforesaid provisions has been affected. Section 232, set out in extenso, is a complete answer to the above-said contention; it will be lawful for the Income Tax Officer or for the Government, as the case may be, to have recourse to any law or suit, notwithstanding the tax due is being recovered from the assessed from any amount specified in Chapter Xvii of the Act. The several modes of recovery specified in that Chapter shall not affect in any way any other law for the time being in force relating to the recovery of arrears as debts due to the Government or even the right of the Government to institute a suit for the recovery of the arrears due from the assessed. By reason of the notices issued by the I.T.O. the tenants become assesseds in default in respect of the amount specified in the notices which was the amount due by the landlord (the judgment debtor of the decree holder Bank). Any question arising between such defaulters or their representatives on the one hand and the Income Tax Officer on the other relating to the execution, discharge or satisfaction of such certificate has, according to paragraph 9 of the Second Schedule, to be determined by the order of the Tax Recovery Officer before whom such question arises and not by way of a suit. If the tenants and the judgment debtors- landlords themselves were precluded from raising any question pertaining to the above before a forum other than the Tax Recovery Officer concerned the appellant Bank also could not raise any question with respect to it. The expression 'their representatives' in paragraph 9 of the Second Schedule is sufficiently wide to take in one like the appellant Bank which is seeking to raise before us a question with reference to the execution, discharge or satisfaction of such a certificate duly filed under the Act on the ground that they have acquired the right of the landlord to recover the rents.

(20) Shri Ved Vyas, learned counsel for the appellant Bank, urged that I.A.787/69 had been filed by the appellant Bank even on 25-4-1969, that certain amounts by way of rent had been collected voluntarily by the Income Tax Officer and that such amount do not come within the ambit of paragraph 9 of the Second Schedule. No such question has been specifically raised in the pleadings. But we have been able to ascertain from Shri Roshan during the hearing that only a sum of Rs. 24,170.00 was paid to the Income Tax Officer voluntarily by some of the tenants during the period May-July, 1969. The major portion of the amounts, thereforee, are those which have been collected involuntarily after the notices issued by the Income Tax Officer on 10-10-1969 and the filing of the certificate before the Tax Recovery Officer on 13-10-1969. With reference to such amounts, collected subsequent to the said certificate, the appellant Bank cannot raise any question before the executing Court; it can do so before the Tax Recovery Officer.

(21) With reference to the further question as to whether this is a matter coming within the ambit of Section 47 Civil Procedure Code (and hence an appeal lies against the order of the single Judge) it has to be noticed that no question at all had been raised by the appellant Bank that this is a matter coming under Section 47 C.P.C. owing to the judgment debtor being affected by the notices issued-by reason of any interpretation of the decree passed on the basis of the award, in none of the petitions which have been tiled by the appellant Bank (there have been a number of them, including I.A. 787/69), the appellant Bank raised the question of being a representative of the judgment debtor or about the judgment debtor being affected. If such a contention had been raised the learned single Judge might have directed notice to be issued to the judgment debtor and if he raised any question about his being affected he might have considered whether to proceed further with the matter in execution, if Section 47 Civil Procedure Code applied, and even if it did whether the matter arising under Section 47 Civil Procedure Code . would itself, on account of the complexity involved, have to be converted into a suit.

(22) Shri Ved Vyas sought to derive support from the two decisions of the Bombay High Court : Lalchand Radhakisan v. Ramdayal Ramnarayan, Air 1939 Bom 112 and Ningappa Neelappa Katti v. Adiveppa Tuppad and others A.I.R. 1939 Bom 468 O. In the former case Beaumont, C. J. observed, but without any discussion, that even though the question arose in that case under Section 73 Civil Procedure Code and no appeal normally lay against an order passed under Section 73, an appeal would lie if the rateable distribution affected not only the creditors inter se but the surety to a considerable extent and the judgment debtor to a lesser extent. Not only Section 47 Civil Procedure Code but Section 145 C.P.C. was also invoked. Beaumont, C. J. stated that even if an appeal did not lie the appeal could have been treated as a revision under Section 115 Civil Procedure Code This decision was followed in the latter case by Lokur, J. The facts in that case were that the judgment debtor had produced the money in the Court for specsific purpose and contended that it must be handed over to a certain decree-holder.

(23) Before any assistance can be had from cases of this description it would be necessary to lay the basis by alleging that the judgment debtor was affected; the judgment debtor must also be a party to the proceedings. The judgment debtor is not a party to the present proceedings out of which this appeal arises; no plea has been raised by the appellant Bank that he was a representative of the judgment debtor (landlord) or that


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