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Sri Raja Venkata Ramayya Appa Rao Bahdur Varu Vs. the Collector of Madras and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberCivil Misc. Petn. No. 6632 of 1951
Judge
Reported inAIR1952Mad841; [1952]21ITR454(Mad); (1952)1MLJ660
ActsRevenue Recovery Act, 1890 - Sections 3 and 5; Income-tax Act, 1922 - Sections 46
AppellantSri Raja Venkata Ramayya Appa Rao Bahdur Varu
RespondentThe Collector of Madras and anr.
Appellant AdvocateO. Chinnappa Reddi, Adv.
Respondent AdvocateVepa Sarathi, Adv. for ;Govt. Pleader and ;C.S. Rama Rao Sahib, Adv.
DispositionApplication dismissed
Excerpt:
- .....the situation. the relevant provisions arc sections 3 and 5 of the act : '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.(a) the name of the defaulter and such other particulars as may be necessary lor his identification and(b) the amount payable by him and the account on which it is due.....(3) the collector of the other district shall, on receiving the certificate, proceed to recover the amount stated therein as if it were an arrear of land revenue which had accrued in.....
Judgment:
ORDER

Subba Rao, J.

1. This is an application for the issue of a writ of mandamus directing the respondents to forbear from restraining and selling the petitioner's property for recovery of arrears of income-tax.

2. The petitioner was one of the partners of the United Construction Company, Rajahmun-dry who took a contract job No. 539 of the Aerodrome works of Madhurapudi for execution. The contract work commenced in October 1942 and was completed by December 1943. Oil 20-3-1950, the petitioner received a communication from the Income-tax Officer, Special North Circle, Madras, calling upon him to pay a sum of Rs. 16,445-3-0 being his share of income-tax, excess profits tax and compulsory deposit, and he duly paid the same. He received another notice from the Income-tax Officer, Rajahmun-dry, demanding him to pay a sum of Rs. 39,307-3-0 being the unpaid tax payable by the other partners. On 19-4-1951, he received a notice from the Tahsildar of Madras threatening to distrain and sell the properties of the petitioner if the said amount was not paid forthwith. The petitioner's case is that the Collector of East Godavari district in which the alleged arrears of income-tax accrued has no jurisdiction to send to the Collector of Madras a requisition for collecting tax from the properties situate in Madras, On that contention he seeks for the issue of the aforesaid writ of mandamus.

3. The provisions of the Revenue Recovery Act, Act 1 of 1890 govern the situation. The relevant provisions arc Sections 3 and 5 of the Act : '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.

(a) the name of the defaulter and such other particulars as may be necessary lor his identification and

(b) the amount payable by him and the account on which it is due.....

(3) The Collector of the other district shall, on receiving the certificate, proceed to recover the amount stated therein as if it were an arrear of land revenue which had accrued in his own district.'

Section 5: Where any sum is recoverable us 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.'

4. Learned counsel for the petitioner contended that arrears of income-tax is neither payable to the Collector nor recoverable by the Income-tax Officer and therefore neither Section 3 nor Section 5 of the Revenue Recovery Act, Act 1 of 1890 would apply to the case. Under Section 3 where an arrear of land-revenue or a sum recoverable as an arrear of land-revenue is payable to a Collector he may send to the Collector of that other district a certificate in the form prescribed where the defaulter's property is situate. Section 3 applies only to cases . where the land-revenue or sum recoverable as land-revenue is payable to the Collector. To ascertain the meaning of the word 'payable' the material provisions of the Madras Revenue Recovery Act may be noticed.

In Section 1 it is stated thus :

'Public revenue due on land shall, for the purposes of this Act be taken to include cesses or other dues payable to Government on account of water supplied to irrigation.' Section 3 reads as follows:

'Every land-holder shall pay to the Collector, or other officer empowered by him to receive the revenue due upon his land on or before the day on which it falls due, according to the Kisbundy or other engagement, and where no particular day is fixed then within the time when the payment falls due according to local usage.'

Section 4 : When the whole or a portion of a kist shall not be so paid, the amount of the kist or of its unpaid portion shall be deemed to bo an arrear of revenue.'

Under the aforesaid provisions 'public re-ventie' also includes cesses or other dues payable to Government on account of water supplied for irrigation. Every land-holder shall pay the same to the Collector within the prescribed period. If it is not paid it will be recovered by the Collector in the manner prescribed by the Act. Under the said Act, therefore, the revenue is payable to the Collector. The cesses on account of water supplied for irrigation are also included in the term 'Public Revenue' and made recoverable as arrears of land revenue. There may also be cases where under different Acts dues payable to the Collector though not be strictly public revenue may be recoverable as arrears of land-revenue. Section 3, therefore, in my view applies only to a case where the land-revenue or a sum recoverable as arrear of land revenue is payable to the Collector. It cannot be applied to a case where the amounts are payable to an officer other than the Collector.

In the present case as income-tax is payable to the Income-tax Officer, Section 3 can have no application. But under Section 5 of Act 1 of 1890 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 may collect it 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 wcro payable to himself. The contention of the learned counsel for the petitioner is that the sum is not recoverable by the Income-tax officer and therefore the section will not apply.

5. Section 6 makes it clear that the officer who actually collects the amount is the Collector of the District in which the arrears accrued or the Collector of another district to whom the former Collector sends the certificate, Therefore, the word 'recoverable' has obviously been used not in the restricted sense of only connoting the process of actual collection. A perusal of the relevant provisions of the Indian Income-tax Act (Act XI of 1922) also supports this interpretation. Chapter VI of the Act deals with recovery of taxes and penalties. That chapter makes a distinction between the recovery and the process of collection. Under S. 45 of the Act the lax shall be paid within the prescribed time after service of notice or order and the assessee failing to pay shall be deemed to be in default. Under Section 46, when an assessee is in default in making a payment of income-tax, the Income-tax Officer may in his discretion direct that in addition to the amount of the arrears, a sum not exceeding that amount shall be 'recovered' from the assessee by way of penalty.

Under Section 46(1-A) for the purposes of Subsection 1, the Income-tax Officer may direct the 'recovery' of any sum less than the amount of the arrears & may enhance the sum so directed to be 'recovered' from time to time in the case of a continuing default, so however that the total sum so directed to be 'recovered' shall not exceed the amount of the arrears payable. Under Section 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. It will, therefore, be seen from the aforesaid provisions that the amount is recoverable by the Income-tax Officer but the 'process of recovery' is entrusted to the Collector. Therefore, as income-tax is recoverable by the Income-tax Officer as land-revenue, under Section 5, Revenue Recovery Act, 1 of 1890 the Collector of the district in which the office of the Income-tax Officer is situate has power to send a certificate of the amount to be recovered to the Collector of another district.

6. In the result, this application fails and isdismissed with costs. Advocate's fee. Rs. 100.


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