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Union of India (Uoi) Vs. Smt. Malina Ghosh and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 2424 of 1981
Judge
Reported in[1985]153ITR263(Cal)
ActsIncome Tax Act; ;Criminal Law Amendment Ordinance
AppellantUnion of India (Uoi)
RespondentSmt. Malina Ghosh and ors.
Appellant AdvocateBalai Pal, ;Nandalal Pal and ;R.C. Prasad, Advs.
Respondent AdvocateMahitosh Majumdar and ;Malay Chakraborty, Advs. and ;Utpal Bhattacharjee, Adv. for respondent No. 4
Excerpt:
- .....should be passed for refunding the amount already realised by the income-tax department.2. the learned district judge relying on the observation of this court made in civil rule no. 871(w) of 1979 has come to the conclusion that in view of the said judgment of this court, the commissioner of income-tax cannot claim any income-tax from the estate so long as it is under attachment. if the commissioner of income-tax tries to avoid the refund of the tax already realised or by applies dilatory tactics, the only course that will be left open to the said court is to pass an executable order in respect of the amounts paid by the present receiver after he assumed charge of the office in 1974 and to ascertain the total payments made by his predecessor-in-office.3. mr. pal, the learned counsel.....
Judgment:

Ganendra Narayan Ray, J.

1. This rule was directed against Order No. 3008 dated May 27, 1981, passed by the District Judge, 24-Parganas, in O.S. No. 53 of 1944. It appears that large properties belonging to Shri S. K. Ghose (since deceased) were attached under the provisions of the Criminal Law Amendment Ordinance, 1944, for the purpose of realising a sum of rupees seventy-five lakhs on account of liability of the said Shri S. K. Ghose, who was convicted and sentenced for misappropriating a large sum of Government money in the discharge of his official duties. The District Judge became custodia legis of the said properties belonging to Shri S. K. Ghose, since deceased, and a receiver has been appointed forrealising the income out of the said property for liquidating the said amount of rupees seventy-five lakhs out of the income of the said properties under attachment. It appears that in 1962, the Commissioner of Income-tax wanted to realise income-tax out of the estate of Shri S.K. Ghose under attachment but the then District Judge by his Order No. 678 dated August 3, 1962, held that under Sub-section (3) of Section 13 of the said Ordinance, the amount found in the final judgment should first be forefeited to His Majesty (now the Union of India) and after the recovery of the dues of Shri S. K. Ghose including the fine imposed upon him the order of attachment in respect of the said properties should be forthwith withdrawn. The Income-tax Department would, thereafter, proceed against those properties. The income-tax authorities subsequently also tried to realise income-tax out of the said properties and the matter came up before this court in Civil Rule No. 871(W) of 1979 and this court held that in view of the order dated August 3, 1962, passed by the then District Judge which was not set aside by any competent court, the successor-in-office could not ignore the same and he was hound to give effect to the said order and it was not necessary to decide the legality or otherwise of the said order passed on August 3, 1962. It appears that thereafter an application was made by Smt. Molina Ghose, the widow of Shri S. K. Ghose, for suitable order and/or direction on the income-tax authorities to refund all payments received by way of income-tax and/or wealth-tax out of the said properties. It appears that the income-tax authorities also contended that the receiver should be directed to file return out of the income received by the receiver in respect of the said properties under attachment as a representative of the assessee and no direction should be passed for refunding the amount already realised by the Income-tax Department.

2. The learned District Judge relying on the observation of this court made in Civil Rule No. 871(W) of 1979 has come to the conclusion that in view of the said judgment of this court, the Commissioner of Income-tax cannot claim any income-tax from the estate so long as it is under attachment. If the Commissioner of Income-tax tries to avoid the refund of the tax already realised or by applies dilatory tactics, the only course that will be left open to the said court is to pass an executable order in respect of the amounts paid by the present receiver after he assumed charge of the office in 1974 and to ascertain the total payments made by his predecessor-in-office.

3. Mr. Pal, the learned counsel appearing for the petitioner, has contended that in the said civil rule, this court referred to the order passed by the learned District Judge in August, 1962, and on that basis had held that in view of the said order of the District Judge which had not beenset aside by any competent court, the said order must be held to be in force and the subsequent District Judge was not entitled to ignore the same but was bound to give effect to the said order. Mr. Pal contended that there was no occasion for the court to decide as to whether or not the receiver being representative of the assessee had any liability to pay income-tax out of the income received from the said properties. He contended that under the I.T. Act unless an assessee was specifically exempted from the payment of income-tax from the income derived from properties, he is bound to make payment of income-tax in accordance with the provisions of the I.T. Act and the rules framed thereunder. He contended that, under the Ordinance, the owner of the properties whose properties remain attached because of the liquidation of the debt or payment to be made under the provisions of the said Ordinance, has not been exempted from payment of any income-tax out of the income received from the said properties. He contended that although the properties remain under attachment under the Ordinance for the purpose of liquidating the debts, the ownership is not lost and if the debt is liquidated, the properties are required to be released from attachment. He, therefore, contended that it will be incorrect to contend that the owner of the said properties and/or the representative of the owner of the said properties cannot be assessed to any income-tax under the I.T. Act. Mr. Pal also contended that the proceeding under the I.T. Act is not a legal proceeding in a court of law and under the Ordinance, so long as the attachment continues, any proceeding in a court of law remains stayed, but not the proceeding before the income-tax authorities which is a proceeding before a tribunal and/or quasi-judicial authorities. Mr. Pal also contended that an adjudication under the I.T. Act in respect of a particular year cannot be held to be an adjudication for all subsequent years of assessment. The principle of res judicata is not applicable in the matter of subsequent assessment and the law is well settled in that regard. Mr. Pal, therefore, contended that the learned District Judge misconstrued the scope and import of the order passed by this court in the said civil court and also the order passed by his predecessor-in-office in August, 1962, and proceeded on an erroneous footing that the receiver has no liability whatsoever as the representative of the assessee to file returns and/or to make any payment of income-tax in respect of the income received from the properties under attachment. He also contended that once tax is paid on the basis of assessment made under the provisions of the I.T. Act, the same cannot be refunded except in accordadce with the provisions for refund under the said Act. But the learned District Judge has, in fact, held that the income-tax authorities must refund all payments received by way of income-tax paid on assessment, if necessary, by passing an executable order. Mr. Pal,therefore, contended that the said order is absolutely illegal and should be set aside.

4. Mr. Majumdar, the learned counsel appearing for respondent No. 1, Smt. Malina Ghose, who is the widow and executrix of the estate of S. K. Ghose, since deceased, contended that the District Judge became custodia legis of the properties of the said late S. K. Ghose for the purpose of liquidating the debts as mentioned hereinbefore and the said properties are under attachment under the said Ordinance. The District Judge and/ or the receiver appointed by him has the paramount duty to collect the income out of the said properties only for the purpose of liquidating the said debt so that on liquidation of debts the properties are released from attachment. He has contended that as such debt is due to the sovereign State, no other payment including the payment on account of tax can claim precedence over the payment to be made for liquidating the debt of the said S. K. Ghose, deceased, and precisely for the purpose of such liquidation, the properties are under attachment under the said Ordinance. He contended that the learned District Judge is, therefore, justified in holding that the receiver should not be directed to make any payment of income-tax out of the income received by him from the properties under attachment and in the aforesaid facts and circumstances of the case, such income must be held as not accountable for the purpose of computation of income-tax. Mr. Majumdar, therefore, contended that even assuming that the income received in the hands of the receiver from the properties under attachment is liable to be assessed to income-tax under ordinary circumstances, the same cannot be considered for the purpose of income-tax in the special facts of the case because of the provisions of the said Ordinance. He, therefore, contends that no interference is called for against the order passed by the learned District Judge, who is custodia legis of the said properties of Sri S. K. Ghose, deceased.

5. After considering the respective submissions of the learned counsel appearing for the parties, it appears to me that by the order passed by the then District Judge in August, 1962, the learned District Judge had held that so long as the properties would remain attached under the said Ordinance, the income-tax authorities were not entitled to realise income-tax by attaching the properties pursuant to such attachment. The income-tax authorities may try to realise their dues only after the attachment would be released under the said Ordinance. In the aforesaid circumstance, Mr. Pal is justified in his contentions that by upholding the said order of the learned District Judge in Civil Rule No. 871 of 1979, this court had no occasion to decide that the owners of the said properties and/ or the representative of such owners did not incur any liability whatsoever for payment of income-tax on the income received from the saidproperties. By upholding the order passed by the learned District Judge in August, 1962, this court, in my view, had held by necessary implication that the income-tax authorities were not entitled to attach the properties for realisation of any income-tax payable by the owners of the said properties so long as the attachment remains under the Ordinance. In the facts of the case, it must be held that the question as to the liability of the owners and/or the representative for payment of income-tax for the income received from the said properties was not necessary to be decided and had not been decided in a proper proceeding. Mr. Majumdar is justified in his contention that in view of the order passed by the then District Judge in 1962, since upheld by this court in the said civil revision case, the income-tax authorities cannot realise income-tax by attaching or selling the said properties so long as the properties remain under attachment under the said Ordinance for a specified purpose. But, in my view, the learned District Judge was not justified in holding that an executable order should be passed against the income-tax authorities for refund of all income-tax realised so far from the receiver of the said properties during the continuance of the said order of attachment under the Ordinance. Mr. Pal is justified in his contention that since the payment of tax has been made on the basis of an order of assessment, no order of refund can be passed contrary to the provisions of the Act and unless the order of assessment is set aside by the appropriate authority, payment of income-tax cannot be held per se illegal in a different proceeding. In the circumstances, the impugned order of the learned District Judge is set aside. The income-tax authorities will be entitled to ask for statement of income received by the receiver from the properties under attachment and on the basis of such statement, the income-tax authorities may proceed for assessment of income-tax in accordance with law but so long as the attachment under the said Ordinance will continue, they are restrained from recovering the tax from the receiver and/or attaching or selling the aforesaid properties during the continuance of the attachment under the Ordinance.

6. The rule is accordingly disposed of. There will be no order as to costs.


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