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Union of India Vs. N. Arunachalam and Another. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberCivil Revision Petitions Nos. 169 and 170 of 1959
Reported in[1960]38ITR336(Mad)
AppellantUnion of India
RespondentN. Arunachalam and Another.
Cases ReferredCivil Procedure Code. In Sriram Rao v. Suryanarayanamurthi
Excerpt:
- .....themselves have not been defined by the act. but section 3(ii) defines 'court' :'court means any civil, revenue or criminal court and includes a tribunal or other authority having jurisdiction under any special or local law to decide questions affecting the rights of parties.'thus, at least four classes are included within the definition of court for the purposes of the madras court-fees and suits valuation act : (1) civil courts, (2) revenue courts, (3) criminal courts, and (4) any tribunal or authority having jurisdiction under any special or local law to decide questions affecting the rights of parties.the collector in this case was authorised by section 46(2) to recover the arrears of income-tax due from the assessees as arrears of land revenue. obviously, in realising the arrears.....
Judgment:

RAJAGOPALAN, J. - The question that arises for determination in both these applications is the same, whether the court-fee payable on the plaint in each of these cases had to be calculated under the provisions of section 41(1) of the Madras Court-fees and Suits Valuation Act, 1955 (Act 14 of 1955), or under the provisions of the residuary section, section 50 of that Act. The learned subordinate Judge held that section 41(1) provided the basis for the calculation of the court-fee payable on each of the plaints.

Bommanna Chettiar, the second defendant in O.S. No. 93 of 1957, and Abu Bucker, the first defendant in O.S. No. 21 of 1957 were income-tax assessees. For the arrears payable by them, certificates were issued to the Collector under section 46 of the Income-tax Act. To realise these arrears the Collector attached certain properties. Claims were preferred that these properties had ceased to be properties of the assesses. These claims were allowed by the Collector, and the properties were released for attachment. The Income-tax Department thereupon filed the two suits to set aside the summary orders passed by the Collector in the earlier proceedings, which resulted in the claims being allowed and the attachments being raised. On each of the plaints court-fee was paid by the Department as plaintiff under section 50 of the Madras Court-fees and Suits Valuation Act. Objection was taken to that by the Court-fee Examiner, and, as I have pointed out earlier, the learned Subordinate Judge held that court-fee was payable under section 41(1) of the Act.

Section 41(1) runs :

'In a suit to set aside an attachment by a civil or revenue court of any property, movable or immovable, or of any interest therein or of any interest in revenue. Or to set aside an order passed on an application made to set aside the attachment, fee shall be computed on the amount for which the property was attached or on one-fourth of the market value of the property attached, whichever is less.'

The suits were to set aside the orders passed on applications to set aside attachments. The attachments were effected by the Collector, and the order releasing them from attachment were passed by the Collector.

It was obviously in exercise of the powers vested in the Collector by the proviso to section 46(2) of the Income-tax Act that he passed the orders, the validity of which had been challenged in the suits. Section 46(2) provided for the recovery of the arrears of income-tax as an arrear of land revenue. The proviso to section 46(2) runs :

'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, a civil court has for the purpose of the recovery of a amount due under a decree.'

In explaining the scope of the proviso, the Supreme Court pointed doubt in Purshottam Govindji Halai v. Additional Collector of Bombay, that the proviso did not prescribe two alternative modes of procedure at all. 'All that the sub-section directs the Collector to do is to proceed to recover the certified amount as if it were an arrear of land revenue, that is to say, he is to adopt the procedure prescribed by the appropriate law of his State for he recovery of land revenue and that in thus proceeding he is, under the proviso, to have all the powers a civil court has under the Code. The sub-sections not prescribe two separate procedures... In our opinion the proviso does not indicate a different and alternative mode of recovery of the certificate amount of tax but only confers additional powers on the Collector for the better and more effective application of the only mode of recovery authorised by the body of sub-section (2) of section 46.' If that be the position, the Collector would not be competent to take any independent proceedings under the code of Civil Procedure, that is independent of the powers to recover an arrear of land revenue.

In Dhanalakshmi Ammal v. Income-tax Officer the learned Chief Justice pointed out :

'But for the additional powers conferred on the Collector by the above-mentioned proviso, we are of the opinion that the Income-tax Act does not provide for recovery of arrears due from the assessee from persons in possession of property which they do not admit to be the assessees property.'

The question now is whether the orders passed by the Collector, to avoid which the suits were filed, were orders passed by a civil or revenue court within the meaning of section 41(1) of the Madras court-fees and Suits Valuation Act, 1955.

The expressions 'civil court' and 'revenue court' themselves have not been defined by the Act. But section 3(ii) defines 'court' :

'Court means any civil, revenue or criminal court and includes a tribunal or other authority having jurisdiction under any special or local law to decide questions affecting the rights of parties.'

Thus, at least four classes are included within the definition of court for the purposes of the Madras Court-fees and Suits Valuation Act : (1) civil courts, (2) revenue courts, (3) criminal courts, and (4) any tribunal or authority having jurisdiction under any special or local law to decide questions affecting the rights of parties.

The Collector in this case was authorised by section 46(2) to recover the arrears of income-tax due from the assessees as arrears of land revenue. Obviously, in realising the arrears of land revenue the Collector does not constitute either a civil of a revenue court. There can be no question, of course, of his constituting a criminal court. No doubt, under the proviso to section 46(2), the Collector can exercise additional powers, but still those powers are exercised only to realise the arrears of income-tax as arrears of land revenue. It was in exercise of those powers that the Collector had to decide whether the claims were well-founded, that is, whether the properties were not liable to attachment. In assuming and exercising that jurisdiction, he exercised the powers of a civil court under the proviso to section 46(2). That made the Collector only a 'tribunal or other authority having jurisdiction under any special or local law to decide questions affecting the rights of parties.' The proviso to section 46(2) did not itself constitute the Collector civil court within the meaning of section 3(ii) of the Madras Court-fees and Suits Valuation Act.

It should be remembered that section 41(1) is applicable not to all orders passed by any court but only to orders passed by a civil or a revenue court. It was not the case of any one that the Collector constituted a revenue court in these proceedings. He did not constitute a civil court either, though under the proviso to section 46(2) of the Income-tax Act he exercised the powers of a civil court.

Even in the Income-tax Act itself the powers of a civil court have been conferred on other authorities, officers of the Income-tax Department itself. But it should be taken as well-settled that, merely because they exercise those posers in the course of assessment proceedings or appeals arising therefrom, they do not constitute civil courts. A Tribunal exercising the powers of a civil court under the Code of Civil Procedure for certain limited purposes is not constituted a civil court by the mere provision or the exercise of those powers; and there is nothing more than the proviso to section 46(2) of the Income-tax Act in this case to furnish any basis for holding that the Collector, while exercising the powers of a civil court, himself constituted a civil court in the meaning of section 3(ii) and section 41(1) of the Madras Court-fees and Suits Valuation Act.

The question at issue in these proceedings has to be answered primarily with reference to the definition of 'court' in section 3(ii) of the Madras Court-fees and Suits Valuation Act, 1955. I have held that the Collector would be court within the meaning of section 3(ii), but that he would not be a civil court within the meaning of section 3(ii) or section 41(1) of the Act. It is, therefore, really unnecessary to consider in detail the decisions cited during the arguments before me whether various statutory authorities could or could not be viewed as civil courts for there purposes. The question that arose for decision in Bharat Bank Ltd. v. Employees of Bharat Bank Ltd., was whether the Industrial Tribunal was a court. The principle laid down therein was followed by the Supreme court in Durga Shankar v. Raghuraj Singh. In Mahabaleswarappa v. Gopalaswami Mudaliar, an Election Commissioner was held to constitute a court and a civil court within the meaning of section 476 and 195 of the Criminal Procedure Code. In Rajah of Venkatagiri v. Sheik Mahaboob, revenue courts established under the Madras Estates Land Act were held to be civil courts for purposes of section 115 of the Civil Procedure Code. In Sriram Rao v. Suryanarayanamurthi, it was held that for the purpose of the Madras Debt Conciliation Act, the Registrar of Co-operative Societies was a civil court, though the provisions of the Code of Civil Procedure themselves did not apply to the proceedings before him. In this connection I may point out that independent of this decision, the explanation to section 41 specifically provides : 'For purposes of this section a Registrar of Co-operative Societies shall be deemed to be a civil court'. As I said none of these decisions can really help in determining the question at issue, which has to be decided with reference to the requirements of section 41(1) read with section 3(ii) of the Madras Court-fees and Suits Valuation Act, and also with reference to section 46(2) and the proviso thereto of the Income-tax Act.

I uphold the contention of the learned counsel for the petitioner, that the suits filed by the plaintiff did not fall within the scope of section 41(1) of the Act, because the suits were not to avoid orders passed by a civil court, though they were suits to avoid orders passed by a court within the meaning of section 3(ii) of the Madras Court-fees and Suits Valuation Act. The plaints were properly stamped under the residuary section, section 50 of that Act.

These petitions are allowed. The orders of the learned Subordinate Judge are set aside. There will however be no order as to costs. The petitioner will be entitled to a refund of the excess court-fee that has been collected.

Petitions allowed.


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