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isha Beevi and ors. Vs. Tax Recovery Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKerala High Court
Decided On
Case NumberWrit Appeal Nos. 492 to 495 and 497 to 505 of 1969 against O.P. Nos. 2265, 2267, 2268, 2269, 2271, 2
Judge
Reported in[1971]80ITR82(Ker)
ActsFinance Act, 1950 - Sections 13(1); Income Tax Act, 1961 - Sections 2(44) and 221; Travancore Income Tax Act, 1121; Income Tax Act, 1922; General Clauses Act, 1897 - Sections 8(1)
Appellantisha Beevi and ors.
RespondentTax Recovery Officer and ors.
Appellant Advocate K.V. Suryanarayana Ayyar,; V.K.K. Menon,; N. Palpu,;
Respondent Advocate Government Pleader,; Mishra and; P.K. Krishnakutty Menon
Cases ReferredAbdulla v. State of Kerala
Excerpt:
direct taxation - attachment - sections 2 (44) and 221 of income tax act, 1961, travancore income tax act and income-tax act, 1922 - appellant's husband at time of death in arrears of income-tax under travancore income-tax act and act of 1922 - tax recovery officer attached property of assessee prohibiting appellants from alienating property - before death assessee executed gift deeds of immovable properties - revenue entitled to proceed as if properties belonged to assessee on date of his death - revenue in position of decree-holder - revenue entitled to attach property. - - 4. the main contentions in the writ petitions were :(1) that the attachment was for recovery of arrears of income-tax due from thangal kunju musaliar both under the travancore income-tax act and the indian.....k.k. mathew, j.1. the appellants are the wives and children of one thangal kunju musaliar, who died on february 19, 1966. at the time of his death, he was in arrears of income-tax due both under the travancore income-tax act, 1121, and the indian income-tax act, 1922. by an order passed on june 10, 1968 (marked as exhibit p-1 in all the writ petitions), the additional personal assistant to the district collector, quilon, functioning as tax recovery officer, attached the immovable properties scheduled to the order, by prohibiting the appellants from transferring or otherwise dealing with them under rule 48 of the second schedule to the income-tax act, 1961, on the basis of 22 certificates covering a total amount of rs. 50,42,970.34. some of the certificates were issued under section 46(2).....
Judgment:

K.K. Mathew, J.

1. The appellants are the wives and children of one Thangal Kunju Musaliar, who died on February 19, 1966. At the time of his death, he was in arrears of income-tax due both under the Travancore Income-tax Act, 1121, and the Indian Income-tax Act, 1922. By an order passed on June 10, 1968 (marked as exhibit P-1 in all the writ petitions), the Additional Personal Assistant to the District Collector, Quilon, functioning as Tax Recovery Officer, attached the immovable properties scheduled to the order, by prohibiting the appellants from transferring or otherwise dealing with them under Rule 48 of the Second Schedule to the Income-tax Act, 1961, on the basis of 22 certificates covering a total amount of Rs. 50,42,970.34. Some of the certificates were issued under Section 46(2) of the Income-tax Act, 1922, and the others under Section 221(1) of the Income-tax Act, 1961.

2. Thangal Kunju Musaliar had before his death executed gift deeds of immovable properties in 1947, 1953, 1954 and 1956 in favour of his wives and children. He had also executed a mortgage, exhibit D-4, on March 17, 1957, in favour of the Governor of the State of Kerala, for 20 lakhs of rupees in consideration of the State Government guaranteeing an overdraft accommodation for the amount by the Central Bank of India in order to enable him to reopen his factories which were closed at the time.

3. By the writ petitions in question the appellants challenged the validity of exhibit P-1 order and prayed for an appropriate direction or order quashing the order, and restraining the respondents from proceeding further on the basis of the attachment.

4. The main contentions in the writ petitions were : (1) that the attachment was for recovery of arrears of income-tax due from Thangal Kunju Musaliar both under the Travancore Income-tax Act and the Indian Income-tax Act, 1922, that so far as the arrears due under the Travancore Income-tax Act were concerned, they could be recovered only under the provisions of that Act, and, therefore, the proceedings attachment under the Income-tax Act, 1961, for recovery of the arrears due under the Travancore Income-tax Act are bad ; (2) that out of the 22 certificates, 11 were issued only after the death of Thangal Kunju Musaliar mentioning him as the assessee, and, therefore, they were invalid as neither Section 66(3) of the Travancore Income-tax Act, nor Section 221 of the Income-tax Act, 1961, authorised the issue of certificates in the name of the assessee after his death, and that, as the amounts covered by these certificates have been tacked on to the amounts covered by the other certificates, the attachment was invalid in entirety; and (3) that by the gift deeds executed by Musaliar in favour of his wives and children, the title to the properties comprised in them passed to the donees, and, therefore, the revenue cannot attach the properties as if they belonged to Thangal Kunju Musaliar on the date of his death.

5. The learned judge overruled all these contentions. He said that, although the order of attachment was passed under Rule 48 of the Second Schedule to the Income-tax Act, 1961, the officer had authority also to proceed under the Travancore Income-tax Act to recover the arrears due under that Act by resorting to the Travancore-Cochin Revenue Recovery Act, and the fact that he purported to act under a wrong provision of law, for recovery of those arrears would not affect his jurisdiction. In other words, the learned judge said that although the Tax Recovery Officer referred to the wrong provision of law for the recovery of the arrears due under the Travancore Income-tax Act, as he had authority to recover the amount, it is merely a case of citing a wrong provision of law for exercising an authority which the officer had. He was also of opinion that the arrears of income-tax due for the years 1119 and 1120 M.E. being covered by exhibit D-3, an order was made under Section 3 of Central Act 33 of 1950, and that order having authorised the revenue to resort to the provisions of the Travancore Income-tax Act or any other law for their realisation, in any event the proceedings for recovery of the arrears due for those years under the provisions of the Income-tax Act, 1961, are immune from attack. As regards the second contention, the learned judge was of the view that although there was no provision for issuing certificates mentioning the name of a deceased assessee, since the appellants did not object to the validity of the certificates on this ground when notices were served upon them under Rule 85 of the Second Schedule to the Income-tax Act, 1961, they were precluded from taking the ground in the writ petitions. And in respect of the third contention, the learned judge said that since the appellants had resorted to the alternative remedy of suits in respect of sum of the properties attached under exhibit P-1, and as it is still open to them to file claim petitions in respect of the other properties under Rule 11 of the Second Schedule to the Income-tax Act, 1961, it was not proper that the writ court should entertain the objection especially as it involved resolution of disputed questions of fact.

6. Counsel for the appellants contended that, for recovery of arrears of income-tax due under the Travancore Income-tax Act, proceedings can be taken only under the provisions of that Act, and since the respondents maintain that the attachment was made under Rule 48 of the Second Schedule to the Income-tax Act, 1961, the order of attachment was bad.

7. He further submitted that the view of the learned judge that the Tax Recovery Officer who passed exhibit P-1 had authority to proceed on the basis of the certificates mentioning the arrears due under the Travancore Income-tax Act under the provisions of that Act and attach the properties, is not correct.

8. The Indian Income-tax Act, 1922, was extended to the Travancore-Cochin State on April 1, 1950, by the Indian Finance Act, 1950. Section 13 of that Act reads :

'(1) If immediately before the 1st 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 year 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: .... '

9. It is clear from Section 13 that the arrears of income-tax due from Thangal Kunju Musaliar under the Travancore Income-tax Act for the years 1119 to 1125 M. E. could be recovered under the provisions of the Travancore Income-tax Act. The operation of that Act was saved for the purposes of the levy, assessment and collection of income-tax for the period specified in Section 13(1) of the Indian Finance Act, 1950 : see the decisions in Union of India v. Madan Gopal Kabra, [1954] 25 I.T.R. 58; [1954] S.C.R. 541 (S.C.) A.N. Lakshman Shenoy v. Income-tax Officer, [1958] 34 I.T.R. 275; [1959] S.C.R. 751 (S.C.) Annamma Kunjacko v. Tax Recovery Officer, [1967] 64 I.T.R. 85 (Ker.) and Commissioner of Income-tax v. Bhikaji Dadabai and Co., [1961] 42 I.T.R. 123; [1961] 3 S.C.R. 923 (S.C.) There was no provision in the Indian Income-tax Act, 1922, which was extended to the Travancore, Cochin State on April 1, 1950, for the levy, assessment and collection of arrears of income-tax due under the Travancore Income-tax Act, Section 46(2) of that Act provides :

'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 any other powers of the Collector in this behalf, he shall, for the purpose of recovering the said amount, have the powers which under the Code of Civil Procedure 1908 (V of 1908), a civil court has for the purpose of the recovery of an amount due under a decree.'

10. The word ''assessee' has been defined in the Act as follows :

''Assessee' means a person by whom income-tax or any other sum of money is payable under this Act, and includes every person in respect of whom any proceeding under this Act has been taken for the assessment of his income or of the loss sustained by him or the amount of refund due to him.' [See Section 2(2)].

Sub-section (2) of Section 46 only enables the collection of the arrears of income-tax due under that Act, and not arrears due under the Travancore Income tax Act. There is likewise no provision in the Income-tax Act, 1961, for the levy, assessment and collection of income-tax due under the Travancore Income-tax Act. Section 297(2)(j) of the Act, upon which reliance was placed by the respondents, may not be of any assistance to them because that sub-section only provides for recovery of arrears of income-tax due under the Income-tax Act, 1922, As the arrears of income-tax due under the Travancore Income-tax Act for the years 1119 to 1125 M.E. could not have been recovered under the provisions of the Indian Income-tax Act, 1922, no proceedings for recovery of those arrears under the provisions of the Income-tax Act, 1961, can be taken. Therefore, it follows that proceedings could be taken for the collection of those arrears only under the Travancore Income-tax Act. We, however, think that the learned judge was right in his view that, although the Tax Recovery Officer purported to pass exhibit P-1 order under Rule 48 of the Second Schedule to the Income-tax Act, 1961, he had power to proceed to recover those arrears under the provisions of the Travancore Income-tax Act. But it was contended on behalf of the appellants that the Division Peishkar alone would have been competent to initiate proceedings to recover the arrears of income-tax under Section 66(3) of the Travancore Act, that the corresponding officer at the time when exhibit P-1 order was passed was the Collector of the District, that the relevant certificates should have been forwarded to him, and that he should have initiated the proceedings for the recovery. We do not think that the submission is correct. The proviso to Section 13(1) of the Indian Finance Act, 1950, would make it clear that the authority constituted under the corresponding provision under the Income-tax Act, 1922, would have had authority to take proceedings for recovery of arrears of tax due under the Travancore Income-tax Act, Section 46(2) of the Income-tax Act, 1922, provided that the certificate has to be forwarded to the Collector and that he shall proceed to recover the amount from the assessee. Just as the Division Peishkar, an officer not appointed under the Travancore Income-tax Act, was constituted as the authority to recover the arrears of tax due under that Act, so also the Collector was constituted as the authority to recover the arrears due under the Income-tax Act, 1922. They were authorities because they were invested with part of the sovereign power of the State, namely, the power to collect tax. (See the decision in Rajasthan State Electricity Board Mohan Lal, A.I.R. 1967 S.C. 1857). Since the Income-tax Act, 1961, repealed and re-enacted with modifications the provisions of the Income-tax Act, 1922, the authority constituted under the corresponding provision of the Income-tax Act, 1961, to recover arrears of tax under that Act, would be the authority competent to proceed to recover the arrears of tax due under the Travancore Income-tax Act. Section 8(1) of the General Clauses Act reads;'Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of 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.'

11. That would indicate that the reference in the proviso to Section 13(1) of the Indian Finance Act, 1950, to the authority constituted under the provisions of the Income-tax Act, 1922, must now be read as a reference to the authority constituted under the corresponding provision in the Income-tax Act, 1961, as the latter Act has repealed and re-enacted the provisions of the Income-tax Act, 1922, with modifications. The Additional Personal Assistant to the Collector, being a Tax Recovery Officer within the meaning of Section 2(44) of the Income-tax Act, 1961, is an authority constituted under Section 221 of the Income-tax Act, 1961, to recover arrears of income-tax due under that Act, and, therefore, he is the corresponding authority referred to in the proviso to Section 13(1) of the Indian Finance Act, 1950, and is competent to take proceedings to recover the arrears to tax due under the Travancore Income-tax Act.

12. It was contended that under Section 66(3) of the Travancore Income-tax Act, the Division Peishkar could have recovered the arrears of income-tax due under that Act only by taking proceedings under the Travancore Revenue Recovery Act, and that under the provisions of the Travancore-Cochin Revenue Recovery Act, 1951, which repealed the Travancore Revenue Recovery Act, only the Tahsildar is competent to attach the immovable property of a defaulter, and not the Additional Personal Assistant to the Collector, and, therefore, the latter had no authority to pass exhibit P-1 order. We do not think that the submission is correct. The proviso to Section 66(3) of the Travancore Income-tax Act provides that the Division Peishkar shall have all the powers of a civil court executing a decree. That would mean that in proceeding to recover the arrears of income-tax, under the relevant Revenue Recovery Act, he can pass an order of attachment which a civil court is competent to pass while executing a decree. Although the Tax Recovery Officer as the corresponding authority is competent only to recover the arrears of tax as if it were an arrear of land revenue, still as he has all the powers of a civil court, executing a decree, he was competent to pass the order of attachment. See the decision of the Supreme Court in Purshottam Govindji Halai v. Additional Collector of Bambay, [1955] 28 I.T.R. 891; [1955] 2 S.C.R. 887 (S.C.)

13. So far as the arrears of income-tax due under the Travancore Income-tax Act for the years 1119 and 1120 M. E. are concerned, they are covered by exhibit D-1 order dated September 25, 1957, passed by the Central Government in pursuance of Section 3 of the Central Act 33 of 1950. Section 3 modified the provisions of the Travancore Income-tax (Investigation Commission) Act XIV of 124. Section 3 provides :

'If immediately before the commencement of this Act there is in force in any Part B State other than Jammu and Kashmir any law (hereinafter in this section referred to as 'the State law') corresponding to the Taxation on Income (Investigation Commission) Act, 1947 (XXX of 1947), that law shall continue to remain in force with the following modifications, namely :--.... (d) the report of the Central Commission shall be submitted to the Central Government, and the Central Government may, by order in writing, direct that such proceedings as it thinks fit under the law in force in the State relating to income-tax, super-tax or excess profits tax or any other law, shall be taken against the person to whose case the report relates in respect of his income other than agricultural income, and upon such a direction being given, all such proceedings may be taken and completed under the appropriate law applicable in the State, as if the direction had been given and the proceedings had been instituted thereunder....'

14. Exhibit D-l directed the Income-tax Officer concerned to take 'all proceedings against Thangal Kunju Musaliar under the Travancore Income-tax Act or any other proceedings under any other law as may be necessary with a view to enforce the payment of the demand notice Governing a sum of Rs. 9,15,458' as arrears of income-tax for those years. The appellants' counsel argued that the expression 'any other law' in exhibit D-1 can take in only laws passed by the Travancore Sovereign and cannot, therefore, refer to the Income-tax Act, 1922. We think that the amount covered by exhibit D-l could have been recovered under the Income-tax Act, 1922, and therefore, could be recovered under the Income-tax Act 1961. The expression 'any other law' is wide enough to cover the Income-tax Act, 1922, especially when it is seen that exhibit D-l was passed after that Act was extended to the Travancore-Cochin State. Nor having regard to the fact that Section 3 of Act 33 of 1950 is a law made by Parliament, do we see any reason for confining the expression 'any other law' therein to laws made by the Travancore Sovereign, although that expression might have had that limited meaning in Travancore Act, XIV of 1122, which Section 3 modified. Section 3, in so far as it authorised the recovery of the arrears of tax by proceedings under any other law, provided an additional remedy, additional to the remedy provided by Section 13 of the Finance Act, 1950, when it saved the provisions of the Travancore Income-tax Act for purposes of the levy, collection and recovery of tax in respect of the period specified in Section 13.

15. The appellant's counsel argued that there was excessive delegation of authority by the Central Government to the Income-tax Officer, in that there was no specification by the Central Government of the law under which the proceedings should be taken by him. We think that the power vested in the Central Government under Section 3 of the Act 33 of 1950 was plenary in character. The Central Government thought that for taking effective steps against the defaulter according to the exigencies of the situation, the Income-tax Officer should have the choice of the law under which the proceedings should be taken. The plenary power to proceed under any law, having been granted to the Central Government, there was nothing wrong in the Central Government leaving the choice of the law to the Income-tax Officer. After all, so long as the recovery can be only in accordance with law, the choice of alternative laws substantially similar in character can well be left to the authority effecting the recovery. We think that the arrears of income-tax due for these two years could have been recovered under the Income-tax Act, 1922, and can now be recovered under the provisions of the Income-tax Act, 1961.

16. We are not satisfied that by reason of exhibit D-2 settlement, the revenue is precluded from recovering the arrears of income-tax due for the period covered by the settlement under the provisions of the Income-tax Act, 1961. As the terms of the settlement binding on the assesses have been broken by him, the revenue cannot be held to be bound by the terms of the settlement binding on them.

17. The next question for consideration is whether the 11 out of the 22 certificates, namely, certificates Nos. 12 to 22 (both inclusive), annexed to exhibit P-1 were validly issued. It was contented on behalf of the appellants that, since these certificates were issued after the death of Thangal Kunju Musaliar, they were void. Reliance was placed upon Section 66(3) of the Travancore Income-tax Act for this purpose. Section 66(3) provides that the Income-tax Officer may forward a certificate under his signature to the Division Peishkar, specifying the amount of arrears due from an assesses, and the Division Peishkar, 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. This would indicate that the certificate should be issued specifying the arrears due from the assessee and that the Division Peishkar should proceed to realise them from such assessee, in other words, from the person named in the certificate. Now, if the assessee was dead, no amount could be recovered from him, and, therefore, we think that these certificates were not validly issued, at any rate no recovery can be made from the legal representatives, since they are not named in the certificates as persons from whom the tax is to be collected. There is also no provision for issue of certificates in the name of a deceased assessee, and for the Tax Recovery Officer proceeding against his legal representatives in the Income-tax Act, 1922 or 1961. Rule 84 in the Second Schedule to the Income-tax Act, 1961, provides that no certificate shall cease to be in force by the death of the defaulter. Rule 85 says that if, at any time after the issue of the certificate, the defaulter dies, proceedings may be continued against the legal representative of the defaulter, and the provisions of the Schedule shall apply as if the legal representatives were the defaulter. These provisions imply that the certificate must be against a defaulter who is alive--they make provision only for recovery on the defaulter's death after the issue of the certificate. We, therefore, hold that the Tax Recovery Officer cannot proceed to recover the amounts specified in these certificates in pursuance of the attachment.

18. It was contended for the appellants that because the attachment was made for the amounts covered by these certificates also, the attachment is invalid. The argument was that, since the amounts specified in these certificates could not have been recovered, as the certificates were not validly issued, the attachment effected on the basis that these amounts could also be recovered on the basis of the certificates is bad. In Sriramiah v. Income-tax, Officer, Kolar, [1964] 52 I.T.R. 408 (Mys.) it was held that if the amount for the recovery of which an assessee's properties are sold in tax recovery proceedings is higher than what is really due from the assessee, the sale would be invalid and the Collector could be restrained by an order from confirming the sale. In Collector of North Arcot v. V.K. Kannan, [1967) 65 I.T.R. 301 (Mad.). the certificate for recovery was for a sum, which was substantially in excess of what was actually due, and it was held that the error would go to the root of the jurisdiction of the Collector to recover the arrears, and the proceedings taken by the Collector for recovery of the arrears would be invalid. For this proposition the learned judges relied on the decision in Santosha Nadar v. First Additional Income-tax Officer, Tuticorin, [1961] 42 I.T.R. 715 (Mad.) where Rajagopalan, Offg. C.J., and Srinivasan J., laid down that where a certificate is issued under Section 46(2) of the Income-tax Act, 1922, for a sum which is substantially in excess of the sum that was actually due, that error would go to the root of the jurisdiction of the Collector to recover the amount. In V.K. Kannan v. Collector of North Arcot, [1966] 61 I.T.R. 293(Mad.). it was held that a certificate showing an amount in excess of what was actually due from the assessee would be invalid and that the proceedings taken under that certificate would also be invalid. These rulings cited by counsel for the appellants have no application to the facts of the present case. The case of a sale for an amount in excess of what is actually due stands on a different footing. So the decision in Sriramiah v. Income-tax Officer is easily distinguishable. There is no case that the amount mentioned in any of the certificates is in excess of the amount that was actually due from the assessee. The only question, here, is whether exhibit P-1 order is vitiated for the reason that the 11 certificates which were issued after the death of Thangal Kunju Musaliar were tacked on to the other certificates, and the order of attachment passed on the basis that all the certificates were validly issued. Even if the amounts due under the certificates issued after the death of the assessee could not be recovered in the proceedings, the attachment would not be invalid for that reason. The appellants relied on the decision in Vimlaben Khimji v. H.S. Manvikar, [1964] 51 I.T.R. 29 (Bom.) where a learned judge of the Bombay High Court held that a prohibitory order issued by the Collector under Order XXI, Rule 54, of the Civil Procedure Code, 1908, in pursuance of a certificate forwarded to him by the Income-tax Officer under Section 46(2) of the Income-tax Act, 1922, for recovery of tax would be invalid, and liable to be quashed by the High Court if the amount sought to be recovered by the said prohibitory order is in excess of the liability of the assessee. He said that the mere fact that the assessee is liable to pay tax, even though of a lesser amount would not make the order valid. With great respect, we find ourselves unable to agree with the proposition. We do not think that it is necessary to specify in an order of attachment of immovable property the amount for which the attachment is effected, (See, for instance, Order 21, Rule 42, Civil Procedure Code). Form 24 in Appendix C of the Civil Procedure Code would indicate that the statement as to the amount of the decree is not an indispensable part of an order of attachment. The operative part of the order only prohibits transfer or other dealings with the property attached. The validity of an order of attachment of immovable property is not dependent upon the correctness of the statement of the amount due in the order of attachment. An attachment would not become invalid even if the decree amount is reduced in an appeal preferred from it. Nor is an attachment before judgment rendered invalid merely because the amount for which the decree is passed is less than the amount shown in the plaint as due.

19. Counsel also relied upon the ruling of a Division Bench of this court in Annamma Kunjacko v. Tax Recovery Officer. That was a case where a defaulter was arrested for arrears of income-tax due from him both under the Travancore Income-tax Act, 1121, as well as under the Income-tax Act, 1922. There was no provision for arrest of a defaulter in the Travancore Income-tax Act, although there was a provision for it in the Income-tax Act, 1922. So, the contention was raised that because the arrest was made for arrears of tax due both under the Travancore Act and the Indian Act, the arrest was illegal. The contention was upheld. In doing so the learned judges relied upon Article 21 of the Constitution, which says that no person can be deprived of his life or personal liberty except according to the procedure established by law. Their Lordships said that the arrest was illegal as the arrest was also for an amount for which the defaulter could not be arrested. Their Lordships also said that the defaulter would have had an opportunity to avoid the arrest by tendering the amount, if the amount for which he could be arrested had been correctly shown. In Thangal v. State of Kerala, [1961] I.L.R. 1 Ker. 279; A.I.R. 1961 Ker. 331, 334. it was held that :

'Even assuming that the amount shown in exhibit P-1 (warrant) is not correct, that by itself would not affect the validity of the warrant. Under Order 21, Rule 38, the judgment-debtor has to pay the amount ordered to be paid in the warrant and if a mistake has been committed in calculating the figure it is open to the judgment-debtor to take appropriate proceedings in court to see that the mistake is rectified and it does not make the warrant on that account illegal.'

20. We are not called upon to express any opinion whether a defaulter is entitled to be released from arrest, even without paying the amount of tax admittedly due, as we are only dealing with the legality of an attachment.

21. We need only say that the reasons which compelled their Lordships in Annamma Kunjacko v. Tax Recovery Officer to hold that the arrest was illegal would not apply in the case of an attachment of immovable property. Sale and arrest affect a man's proprietary and personal rights. Not so, a mere attachment which only affects the right of disposal as against claims enforceable under the attachment. The amount mentioned as due in the prohibitory order is, therefore, of no significance unlike the amount mentioned in the sale proclamation or the arrest warrant. In the case of the latter the debtor can avert the sale or the arrest by paying the amount due and if the amount shown is substantially higher than the amount really due, he suffers prejudice thereby, for, whereas he might have been able to pay the smaller sum really due, he might not be in a position to pay the higher sum shown. We see no reason to hold that the attachment is invalid. No doubt, as we have indicated, the claim enforceable under the attachment would not include the amounts covered by the certificates Nos. 12 to 22 (both inclusive) annexed to exhibit P-1. In other words, the amounts covered by these certificates cannot be recovered in pursuance of the attachment. We express no opinion on the question whether these certificates could be corrected or whether fresh certificates for the amounts could be issued and the properties attached in pursuance thereof.

22. It was contended for the appellants that Thangal Kunju Musaliar hadexecuted four gift deeds during his life that the title to the propertiesincluded in the gift deeds passed to the donees, and that the revenueshould not have proceeded to attach the properties as if they belonged toThangal Kunju Musaliar at the time of his death. It is contended that therevenue should have filed a suit and obtained an adjudication that the giftdeeds were either sham or intended to defeat or delay his creditors beforeproceeding to attach the properties. Reliance was placed in this connectionupon the ruling of this court in Abdulla v. State of Kerala, [1962] I.L.R. 1 Ker. 396 whereVaidialingam J. held that when a dealer assessed to sales tax transferredhis property, the amount assessed cannot be recovered from the propertytransferred, unless there is an adjudication by a civil court that the transferwas either intended to defeat or delay the creditors or that it was sham.We are not satisfied that it was necessary for the revenue to have filed asuit for declaration that the gift deeds executed by Thangal Kunju Musaliarwere either sham or intended to defeat or delay the creditors before proceeding to attach the properties, on the basis that they belonged to him on thedate of his death. We think that the revenue was entitled to proceed as ifthe properties belonged to Thangal Kunju Musaliar on the date of his death. The appellants, if they are aggrieved, could file claims before the concerned authority, and get an adjudication of the claims; and if dissatisfied with the adjudication, they can approach the civil court for appropriate relief. The revenue is in the position of a decree-holder who is entitled to attach property which he believes to be his judgment-debtor's ignoring a sham transfer, or be the attachment avoiding a fraudulent transfer leaving it to the person interested to make a claim or institute a suit to establish his rights. In this case, for part of the properties covered by one of the gift deeds, suits were filed in the sub-court, Quilon, and in the munsif's court, Quilon, as O. S. Nos. 14 of 1968 and 76 of 1967, respectively. Although the courts passed decrees declaring the title of the appellants to the suit properties, the district court, in appeals filed by the revenue, reversed the decrees and declared the gift deeds as not binding on the revenue, in the enforcement of their claim for recovery of the arrears of lax against the properties. It is represented that second appeals from these decrees filed by the appellants are pending in this court. We are of opinion that the proper forum for adjudicating the question, so far as the properties covered by the suits are concerned, is the court in which the appeals are pending. In respect of the properties not covered by the suits, the remedy of the appellants, as stated by the learned judge, is to file claim petitions and get an adjudication of the question, and then, if so advised, approach the civil court, if the decision in the claim enquiry is adverse to them. As the appellants have effective alternative remedy and as the claims involve resolution of disputed questions of fact, we think, the learned judge was right in declining to adjudicate on this controversy.

23. In the result, we declare that the claim enforceable under exhibit P-1 attachment will not include the arrears of income-tax specified in the 11 certificates which were issued after the death of Thangal Kunju Musaliar, and modify the order of the learned judge to this extent. Subject to the modification indicated, we dismiss the writ appeals. In the circumstances, of the case, we do not make any order as to costs.


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