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Milan Kumar Mukherjee Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberAppeal from Appellate Decree No. 2341 of 1965
Judge
Reported in[1984]149ITR730(Cal)
ActsPublic Demands Act, 1913 - Section 16; ;Income Tax Act
AppellantMilan Kumar Mukherjee
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateArun Kumar Matilal, Adv.
Respondent AdvocateNanda Lal Pal, Adv.
Cases ReferredKhardah Co. Ltd. v. State of West Bengal
Excerpt:
- .....j.1. the facts relating to this second appeal are as follows :a certificate proceeding under the public demands recovery act was started for recovery of arrears of income-tax due, against the father of the plaintiff and another by the certificate officer of 24-parganas, who signed the certificate initiating the proceedings. the plaintiff on behalf of his father and others admitted the liability and prayed for monthly instalments which was granted. the entire dues were liquidated. but the father of the plaintiff was again called upon by the certificate officer by a letter dated january 15, 1957, to pay a sum of about rs. 1,500 by way of interest on the arrears of income-tax which was assessed against him. the appellant put in his objection which was disallowed and a distress warrant was.....
Judgment:

Jyotirmoyee Nag, J.

1. The facts relating to this second appeal are as follows :

A certificate proceeding under the Public Demands Recovery Act was started for recovery of arrears of income-tax due, against the father of the plaintiff and another by the Certificate Officer of 24-Parganas, who signed the certificate initiating the proceedings. The plaintiff on behalf of his father and others admitted the liability and prayed for monthly instalments which was granted. The entire dues were liquidated. But the father of the plaintiff was again called upon by the Certificate Officer by a letter dated January 15, 1957, to pay a sum of about Rs. 1,500 by way of interest on the arrears of income-tax which was assessed against him. The appellant put in his objection which was disallowed and a distress warrant was issued against him for recovery of the said dues by the Certificate Officer. The objection that was raised was that this amount was an illegal demand after the payment of the dues by instalments on the basis of the order of the Certificate Officer and same not being a public demand, was not recoverable under Section 16 of the Public Demands Recovery Act and, therefore, the proceeding initiated against the plaintiff's father and others was illegal and ultra vires. The plaintiff accordingly, brought the present suit for a declaration that the demand of interest was illegal and ultra vires and prayed for cancellation of the demand.

2. This suit was contested by defendant No. 1, State of West Bengal (respondent), and also by defendant No. 3, the Certificate Officer. Their defence was that the suit was not maintainable, that the court had no jurisdiction to entertain such a suit inasmuch as the interest payable from the date of signing of certificate up to the date of realisation was recoverable under Section 16 of the Public Demands Recovery Act and as such the demand for interest and the proceeding for its realisation were quite in order.

3. The learned Munsif agreed with the contention made on behalf of the defendants/respondents and held that such a suit was not maintainable, as the court had no jurisdiction to try it and dismissed the suit,

4. An appeal way preferred to the lower appellate court on the ground raised by the appellants and also the objection given by the respondents. Ordinarily, a certificate debtor upon whom service of notice has been made and who denies his liability for the payment may bring a suit in the civil court to have the certificate cancelled under Section 34 of the Public Demands Recovery Act. Here the demand was for interest on the public demand to which the original certificate referred. From the date of signing of the certificate till the date of realisation of the amount under Section 16 of the Bengal Public Demands Recovery Act, no fresh certificate fox the claim was signed or issued, but demand was made by letter dated January 15, 1957. So, there can be no question of cancellation of any certificate for realisation of the present claim for interest. The other prayer was for a declaration that the payment of interest in the proceeding for recovery thereof is illegal and ultra vires. According to the learned judge, the disputes were enter tamable by a civil court and he held that the prayer for such a declaration is maintainable. No objection was raised by the debtors to the demand and, in fact, they admitted the liability and prayed for payment of the dues by instalments.

5. Accordingly, the Certificate Officer made an order for payment of the dues in monthly instalments. In compliance with the order of the Certificate Officer, the demand order was fully liquidated but when a claim for a sum of Rs. 1,589.10 was made by way of interest on January 15, 1957, by a letter on account of arrears of income-tax which had been fully realised, this interest being payable from the date of signing of the certificate up to the date of realisation, an objection was raised to the effect that there is no procedure for realisation of the same under the Public Demands Recovery Act alter the original dues were cleared up and as the certificate included both arrears due as well as interest, there can be no question of demanding further interest for making payments by instalments. This amount could not be ascertained at the time of issuance of the original certificate of demand and hence could not be demanded at that time. Therefore, the same could be demanded only after the entire dues were realised by instalments. Therefore, there is no substance in this contention made on behalf of the appellant on this score.

6. The next objection raised is that payment of interest does not come within the ambit of a public demand and that there is no procedure for realisation of interest upon payment of the instalments. On a reading of Section 16 of the Act, it is quite clear that such a claim is legal and recoverable though not coming strictly within the definition of public demand under Section 4 of the Act. The procedure is also provided for recovery of the interest in respect of the certificate filed under the Act. Therefore, no fresh certificate of demand need be signed or put into execution and the dues are recoverable in the proceeding which is a continuation of the same proceeding started on the certificate issued on the original demand. Hence, it was held by the learned judge that the procedure was in conformity with the law and, accordingly, overruled the objections made by the appellants.

7. Two oases, however, have been cited by the learned advocate for the appellant in support of his contention that the proceedings are not legal namely, Khardah Co. Ltd. v. State of West Bengal, : AIR1969Cal284 . In this case also there was no dispute about the original certificate amount, but, there was no mention in the certificate of the interest or costs. Interest and costs are provided under Section 16 of the Public Demands Recovery Act. The provisions of Section 16 are as follows :

'There shall be recoverable, in the proceedings in execution of every certificate filed under this Act-

(a) interest upon the public demand to which the certificate relates, at the rate of 61/4 p. c. per annum from the date of signing of the certificate up to the date of realisation;

(b) such costs as are directed to be paid under Section 45 ; and

(c) all charges incurred in respect of-

(i) the service of notice under Section 7, and of warrants and other processes ; and

(ii) all other proceeding taken for realising the demand. ' It was argued by Mr. Bhubhra in this case that when the certificate amount as shown in the certificate was paid amicably, there was no execution proceeding pending and, therefore, no amount for, interest, costs and charges are at all payable. This argument apropos may be divided into two parts : Firstly, as to whether the amount of interest, costs and charges are at all payable or recoverable in the facts and circumstances of the case. This is the substantial question and the second one is merely a technical question, namely, as to whether there is at the present moment any execution proceeding pending in which it can be made recoverable. Mr. Bhabhra has made it clear that, if he fails on the first point, then he will not take the second point, because that would be merely postponing the evil day.

8. The question, therefore, is as to whether interest, costs and charges are at all payable. We have to come back to Section 16 because that is the most important section that creates the liability to pay interest, costs and charges, Mr. Bhabhra interprets it to mean that the liability to pay interest, costs and charges is subject to the existence of execution proceedings. In other words, when the principal sum due on a certificate is paid at a time when no execution proceeding is actually pending, the liability to pay interest, costs and charges do not accrue. In my view, this is not a correct interpretation of Section 16. Under Section 16, interest, costs and charges are payable with regard to the public demand to which the certificate relates. But it is stated that it is recoverable by execution proceedings. This only lays down the mode of recovery. Therefore, simply because the money is paid amicably and no execution proceeding is pending, does not avoid the liability. Putting it in another way, amicable payment of principal sum alone cannot avoid the liability of payment of interest, costs and charges payable under the Act. The law is that all certificate amounts will carry interest, costs and charges, but they would be recoverable when execution proceedings are initiated. Therefore, amicable payment at any time only of the principal amount will not bring the certificate to an end. The certificate for the original amount mentioned in it as well as the amount payable in law, namely, 'interest, costs and charges, to escape liability under the certificate altogether, the whole amount will have to be paid or deposited '. Therefore, this case cited by the learned advocate for the appellant does not in any way go in favour of his contention.

9. The case of the learned advocate for the respondent refers to Rule 9 of Schedule II of the I.T. Act, 1961, and Section 37 of the Public Demands Recovery Act, 1913, and any question relating to the execution, discharge or satisfaction of a certificate duly filed under the I.T. Act arises between the ITO or defaulter or his representative shall be determined not by a suit, but by an order of the TRO before whom such question arises unless fraud is alleged. The TRO has to proceed to investigate such claim or objection and it is only after the completion of such investigation and the making of an order by the TRO that a party aggrieved by such order may bring a suit in the civil court. On the basis of this judgment, the learned advocate for the respondents has argued that the suit itself is not maintainable as the proceeding was not first taken before the certificate officer. Only after that procedure is exhausted the appellant could go to a civil court. I think, there is much force in this argument and I hold that the suit, as framed, is not maintainable.

10. Accordingly, I uphold the judgment and decree passed by the lower appellate court and dismiss the appeal with costs.


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