1. In this petition, a writ of prohibition or other appropriate writ is prayed for. The petitioner asks that the notice of demand issued by the Special Deputy Tahsildar for the collection of income-tax arrears in demand notice I.T. No. 499 of 1955, dated 17th July, 1955, may be called for and quashed.
2. The assessment relates to the assessment year 1949-50 and the total amount of tax payable by the petitioner was found to be Rs. 7,515-13-0. Subsequently, after certain adjustments, the petitioner was informed that the arrears that remained to be paid was a sum of Rs. 7,191-2-0. Thereafter a certificate was issued by the Income-tax Officer under Section 46(2) of the Income-tax Act stating that a sum of Rs. 6,207-8-0 was the amount due as income-tax arrears. In pursuance of that certificate, a notice of demand was issued by the Special Deputy Tahsildar for collection of income-tax arrears purporting to be under Act II of 1864 wherein also this last mentioned sum was shown as the arrears. The petitioner claims that the arrears so mentioned in the demand were not in accordance with the assessment order and that the certificate did not, therefore, specify the correct amount of arrears. The petitioner's contention accordingly is that the certificate issued indicating therein an amount different from what was the correct amount of arrears is under the law invalid and the demand notice issued on foot of such certificate would be equally invalid. A further ground has been taken that Act II of 1864 not being applicable to the City of Madras, the demand purporting to be issued under that Act and the invocation of the powers under that Act are illegal.
3. In the counter-affidavit filed by the respondents, the facts set out by the petitioner are admitted to be substantially correct. But it is claimed that the sum originally due from the petitioner was made up of income-tax and super-tax amounting to Rs. 6,207-8-0 and penal interest of Rs. 1,308-5-0. Subsequently, there was an adjustment in respect of the penal interest leaving the balance of interest only of Rs. 983-10-0. There was also a claim by the petitioner for double income-tax relief to an estimated extent of Rs. 1,400. For these reasons, it was claimed that the certificate issued under Section 46(2) of the Act was limited only to the tax. The contention further submitted was that the Act makes a distinction between the tax, penalty and interest, and that where a certificate and the demand had not placed a figure of arrears at a figure higher than what is really due from the petitioner, the validity of the certificate or of the notice cannot be attacked.
4. The short question that arises in this writ petition is whether the issue of the certificate for an amount less than what is really due from the petitioner as arrears invalidates the certificate and the consequent notice issued by the Collector. In putting forward this argument, learned Counsel urges that what Section 46(2) of the Act requires is that the amount of arrears due from an assessee should be 'specified' in the certificate. 'Specified', according to the learned Counsel, means indicate with accuracy or with precision He refers to Section 29 of the Act which also requires that the notice of the demand should issue 'in the prescribed form specifying the sum so payable' to Section 45, where again ' any amounts specified as payable in a notice of demand under Section 29' is referred to in dealing with the discretion of the Income-tax Officer to treat the assessee as not being in default or otherwise. In case the assessee is in default within the meaning of Section 45, he becomes liable under Section 46(1) of the Act to certain penalties, and that being so, so argues the learned Counsel for the petitioner, the expression 'specified ' has to be strictly interpreted as to mean that the sum should be accurately indicated in any notice or certificate issued under any of the provisions of the Act.
5. Learned Counsel referred us to the ordinary dictionary meaning of the expression. ' Specify ' according to the Oxford Concise Dictionary, means ' name expressly, mention definitely (items, details, ingredients, etc.)'. 'Specific' being the adjectival form is interpreted as ' definite, distinctly formulated.' According to Funk and Wagnall's New Standard Dictionary, the expression ' Specify ' means ' to mention specifically; state in full and explicit terms; name expressly or particularly.' ' Specific' is also defined as ' distinctly and plainly set forth; specified; also pertaining to what is specified, definite, or determinate; distinct; particular; explicit; precise.' It is no doubt true that the expressions ' specify ' or ' specific' carry with them some connotation of particularity or precision. But, we cannot always rest upon the dictionary meaning of an expression in interpreting it for all purposes. An expression used in a statute must necessarily derive its meaning from the context in which it is placed.
6. Certain observations in Elliot v. The Duchess Mills Ltd. (1920) 11 T.C. 56 at 80 have been referred to. In that case, relief was claimed in respect of profits falling short from a 'specific cause' within the meaning of Rule 11 of Cases and II of Schedule D. What was a 'specific cause' within the meaning of the rule had to be ascertained, and certain observations of the Judges of the Court of Appeal have been relied on. Scrutton, L.J. said:
In my view 'specific' means stated with precision as opposed to a mere statement of fact without assigning a precise or determined cause for it... turning to the more ordinary English, it is' 'precise or exact in respect of fulfilment of conditions or terms, definite, explicit, exactly named Gr indicated or capable of being so, precise, particular ', I would have thought that was the more order nary meaning of 'specific' and I myself should not have agreed with Mr. Justice Grove when he says that specific does not mean specified - that the two things are different. I should have thought they were the same thing, one in the form of a verb and the other in the form of an adjective, In my view 'specific cause' in itself means a precisely stated definite cause as distinguished from a mere statement: I have lost profits because I have made less money' or words to that effect.
7. While it is true that the word 'specific' in the context of the expression 'specific cause' was held in this decision to indicate something which was precise or particular, we are not disposed to accept such an interpretation to govern every case where the word ' specific' or 'specified' is used. The case before the Court of Appeal was one where relief from tax was claimed and such a relief was available only if the fall of profits was attributable to a specific cause as opposed to anything of a general nature, such as fluctuations of trade in the ordinary course of business. It was in that context that the word 'specific' was invested with greater force than what it would normally bear. This decision cannot support the contention that the word ' specified ' as used in Section 46(2) of the Act should also bear a similar construction.
8. Nor does it appear to us that Abdul Kassim v. First Additional Income-tax Officer : AIR1958Mad301 Mad, next cited by the learned Counsel, serves to help the interpretation of the expression 'specified'. That was a case where, in respect of arrears due from a deceased assessee, a certificate was issued under Section 46(2) of the Act against the legal representative of the assessee. The learned Judges held that a legal representative who is assessed under Section 24-B(2) of the Act is not an assessee within the meaning of Section 29 or Section 46(2) and that the Income-tax Officer has no jurisdiction under Section 46(2) to treat the legal representative as an assessee. This decision limited the fiction enacted by Section 24-B(2) for the purpose of assessment alone and laid down that that fiction did not extend to the collection of the tax. The only limited support which the petitioner can find in this decision is as to the meaning of' arrears.' That is not relevant for our present purposes.
9. On behalf of the Department, it has been contended, and we feel rightly, that in the proceedings relating to the recovery of tax and penalties, proceedings in relation to a part only of the arrears are not incompetent and a certificate issued only in respect of part of the arrears does not become invalid as in violation of Section 46(2) of the Act. Learned Counsel for the Department pointed out that even under the Proviso to Section 45, the Income-tax Officer is under a duty to take no account of a part of the tax in holding a person to be in default. Section 46 lays down various modes of recovery. For instance, under Section 46(5), if an assessee is in receipt of a salary, the Income-tax Officer may require the person paying the salary to deduct any arrears due from such assessee. It is obvious that in such an event the deduction cannot possibly be made of the whole amount of arrears. A garnishee proceeding under Section 46(5)(a) is again similar in its scope. It is only part of the arrears that will be recoverable from the garnishee, that is to say, to the extent to which the garnishee is in possession of the funds belonging to the assessee. There is the further feature that under the Explanation the several modes of recovery specified in Section 46 are not mutually exclusive and that the Department can have resort to more than one mode of recovery at the same time, a course strongly suggestive of the fact that part only of the arrears may, or may even be intended, to be recovered under each separate mode of recovery.
10. It seems to us accordingly that a certificate issued under Section 46(2) of the Act, indicating as the arrears a part only of such arrears, is not invalid. It is not necessary for us to examine whether if the arrears so specified exceeds the amount really payable by the assessee, such a notice would be invalid or not. We are clear in our minds that a certificate issued in respect of a part only of the arrears does not offend Section 46(2) of the Act.
11. The other contention of the assessee was that the notice of demand issued by the Collector for collection of income-tax arrears purported to be under Act II of 1864. The counter-affidavit of the respondents does not traverse this ground, but arguments have been addressed in support of the validity of this notice. It is conceded by the Department that Act II of 1864 does not apply to the City of Madras. Section 64 of that Act clearly lays down that ' nothing in this Act shall apply to the collection of land revenue within the limits of the town of Madras as defined by Section 12, Regulation II of 1802 of the Madras Code.' The point, however, is whether even though the notice of demand has been exprcssd to be issued under the powers derived under Madras Act II of 1864, it must be necessarily held to be invalid, notwithstanding that the authority issuing the notice had similar powers for the recovery of the land revenue under a different enactment. Now, the particular Act which gives such powers for the recovery of the land revenue within the local limits of the Ordinary Original Civil Jurisdiction of the High Court of Judicature at Madras is Act XII of 1851. It is not denied that if the ' notice had been issued under this Act, its validity cannot be brought into question. Learned Counsel was unable to say why notwithstanding that the authority that issued notice had similar powers under Act XII of 1851, the notice issued in this case should yet be regarded as invalid. He relied upon a decision of this Court in Aijesha Bibi v. Commissioner of Income-tax : (1956)2MLJ143 . In that case also the Collector, acting on a certificate under Section 46(2) of the Act issued a notice of demand purporting to be under the provisions of Act II of 1864. The learned Judges took the view:
The legislative sanction to recover arrears of land revenue in the area excluded by Section 64 of Act II of 1864 from the operation of that Act is to be found in the Madras City Land Revenue Act (XII of 1851) as amended by Madras Act VI of 1867. It was not any statutory power under Act XII of 1851 that the Collector exercised when he issued the notice, dated 17th July, 1954. It was the statutory power vested in him under the provisions of Madras Act II of 1864 that he invoked... Section 64 of Act II of 1864 provides, therefore, a complete answer to the demand issued by the Collector under the provisions of Act II of 1864.
Accordingly, a writ of prohibition was issued in that case. On an examination of this decision, it seems to us that the validity of the notice issued in that case was not sought to be supported by any reference to Act XII of 1851. Under Section 46(2) on the issue of a certificate the Collector is authorised to recover the amount specified in the certificate as if it were an arrear of land revenue. The Collector derives his jurisdiction from the certificate. His authority to recover any amount as arrear of land revenue is governed by different enactments, by Act II of 1864 in areas outside the city of Madras, and by Act XII of 1851 in the city of Madras. Obviously had the notice of demand issued by the Collector failed to mention any particular enactment, the notice could not be regarded as invalid on that ground. The question is whether while the Collector, undoubtedly possessed the authority to recover any amount as an arrear of land revenue within the city of Madras the mere mention of a wrong enactment at the head of the notice invalidates that notice altogether.
12. In Hazari Mai Kuthiala v. Income-tax Officer : 41ITR12(SC) , the Supreme Court had to consider an analogous case. In that case, the Commissioner, purporting to act under Section 5(5) and (7-A) of the Indian Income-tax Act directed the assessment, of the assessee to be made by the Income-tax Officer, Special Circle, Ambala, and not by the Income-tax Officer at Patiala, who would normally have jurisdiction. This order was made in 1953. In 1955, the Income-tax Officer, Special Circle, Ambala, issued a notice under Section 34 of the Patiala Income-tax Act to re-open the assessment for the account year 1945-46. The contention was that the officer at Ambala had no jurisdiction, the order of the Commissioner not having been issued under the Patiala Act which applied to the assessment year 1946-47. The contention was :
The Commissioner when he transferred the case, referred not to the Patiala Income-tax Act but to the Indian Income-tax Act, and it is contended that if the Patiala Income-tax Act was in force for purposes of re-assessment, action should have been taken under that Act and not under the Indian Income-tax Act.
Their Lordships dealt with this argument in these words:
This argument, however, loses point because the exercise of a power will be referable to a jurisdiction which confers validity upon it and not to jurisdiction under which it will be nugatory. This principle is well-settled. See Pitamhar Vajirabet v. Dhondu Navipa I.L.R.(1888) 12 Bom. 486 .
It seems to us that this decision fully answers the particular contention before us. In the light of this decision of the Supreme Court, we are unable to rely upon Alyeshi Bibi v. Commissioner of Income-tax : (1956)2MLJ143 , as supporting the contention of the petitioner. We have already pointed out that in so far as the recovery of any amount as arrear of land revenue is concerned, the Collector had ample and undeniable authority under Act XII of 1851. His jurisdiction to issue the notice of demand in question must accordingly be referrable to that Act and not to Act II of 1864 even though it might have been mentioned in the notice of demand. This contention accordingly fails.
13. In the result, the petition fails and will stand dismissed with costs. (The rule nisi will stand discharged). Counsel's fee Rs. 250,