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Union of India (Uoi) Vs. Bikash Chandra Ghosh and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberCivil Revision No. 2176 of 1966
Judge
Reported in[1970]78ITR524(Cal)
ActsIncome Tax Act, 1961 - Sections 222 and 224
AppellantUnion of India (Uoi)
RespondentBikash Chandra Ghosh and ors.
Appellant AdvocateBalai Lal Pal and ;N.L. Pal, Advs.
Respondent AdvocateSushil K. Banerjee, Adv.
Excerpt:
- .....1961, was issued in the name of sri mihir kumar sarkar for and on behalf of other members of the hindu undivided family consisting of the sons and heirs and legal representative of the late surendra nath sarkar, the late bidhu bhusan sarkar and the late ganapati sarkar. thereafter, a further notice addressed to the said sri talukdar was also issued with a forwarding letter on the 30th august. there was no compliance with the terms of the said notice under section 22 (4) of the said act and the assessment was completed under section 23(4) read with section 41 of the said act. the status of the assessee has been mentioned as the hindu undivided family. it is necessary to point out the exact expressions used in the assessment order which are as follows:'status, hindu undivided family,.....
Judgment:

Sabyasachi Mukharji, J.

1. It appears that for the assessment year 1957-58, notice under Section 22(2) of the Indian Income-tax Act, 1922, hereinafter referred to as 'the said Act', dated 20th March, 1958, was issued in the name of Sri H. Talukdar, receiver to the estate of Messrs. Surendra Nath Sarkar & Others. A notice under Section 22(4) dated 15th May, 1959, was also issued in the name of Sri Talukdar. A similar notice under Section 22(2) dated 20th March, 1958, was also issued in the name of Messrs. Surendra Nath Sarkar and Ors. and another notice Tinder Section 22(4), dated 20th August, 1961, was issued in the name of Sri Mihir Kumar Sarkar for and on behalf of other members of the Hindu undivided family consisting of the sons and heirs and legal representative of the late Surendra Nath Sarkar, the late Bidhu Bhusan Sarkar and the late Ganapati Sarkar. Thereafter, a further notice addressed to the said Sri Talukdar was also issued with a forwarding letter on the 30th August. There was no compliance with the terms of the said notice under Section 22 (4) of the said Act and the assessment was completed under Section 23(4) read with Section 41 of the said Act. The status of the assessee has been mentioned as the Hindu undivided family. It is necessary to point out the exact expressions used in the assessment order which are as follows:

'Status, Hindu undivided family, consisting of the following members .....' Then the names of the persons constituting the Hindu undivided family have been stated. In the order itself there are the following observations : 'As there has been no compliance the assessment is being made under Section 23 (4) of the Act and the assessment is levied on the Hindu undivided family on whose behalf receivers, Mr. H. Talukdar and Mr. B. C. Ghose, are at present receiving the income and the tax will be realised from them under Section 41(2) if the members of the Hindu undivided family fail to pay the same.'

2. The total income assessed was Rs. 1,02,450 and the tax determined to be payable thereon was Rs. 60,881-98. In his letter dated 30th the August, 1961 (in reply to the letter of Mr. Talukdar who had raised the question of the status of the assessee and to which letter this was written in reply) it was observed by the Income-tax Officer, B-ward, Dist. 1(2), Calcutta, that the point of the status has already been settled in the assessment for the year 1956-57 and the status has been determined as that of a Hindu undivided family. The Income-tax Officer referred the fact that there has been no application under Section 25A(1) of the Indian Income-tax Act, 1922. This letter, it has to be borne in mind, was written prior to the completion of the assessment for the assessment year 1957-58.

3. As the aforesaid demand remained unpaid a certificate under Section 222 If the Income-tax Act, 1961, was issued on the 23rd March, 1963, in the name of the assessee, Hindu undivided family, represented by the said two receivers, Sri Bikash Chandra Ghosh and Sri H. Talukdar. On the basis of the said certificate, Case No. 44 I.T.B. of 1963-64 was started in the court of the Tax Recovery Officer and the Additional District Magistrate, 24-Paraganas. Objections were filed on behalf of the certificate-debtors contending, (a) that there was no proper service of the notice of demand on the assessee which was not an undivided Hindu family according to Hindu law; (b) the Tax Recovery Officer or an Additional Collector, 24-Parganas, had no jurisdiction over the town of Calcutta; (c) that, on the facts and in the circumstances of the case, the Tax Recovery Officer could proceed only against the receivers but not directly against the assessee as he did. By his order dated 17th August, 1964, the Tax Recovery Officer rejected the objection petition. The Certificate Officer observed that the assessment had been made on Messrs. Surendra Nath Sarkar, Bidhu Bhusad Sarkar and others in the status of a Hindu undivided family and the certificate under Section 222 of the Income-tax Act, 1961, had also been filed against the Hindu undivided family and the names of the members comprising the Hindu undivided family had also been mentioned in the assessment order and the certificate filed under Section 222. The Certificate Officer further observed that he could not go beyond the certificate filed and if there had been a partition of the Hindu undivided family, the matter should have been agitated before the income-tax authorities. The Certificate Officer observed that the demand notice was issued on the Hindu undivided family and was received by one Nagendra Nath Ghosh. The Certificate Officer recorded that it had not been denied that Nagendra Nath Ghosh is a karmachari of the Hindu undivided family. He, therefore, held that there had been a proper service of the notice of demand on the Hindu undivided family. The next contention that was urged before the Certificate Officer was that the Tax Recovery Officer or the Additional Collector, 24-Parganas, had no jurisdiction over the town of Calcutta. After discussion of the relevant provision of the Act he came to conclusion that this objection was without substance. The third contention that was urged before the Certificate Officer was regarding the realisation of tax from the receivers only. The Certificate Officer observed that this objection had not been pressed before him. He further observed that this point had been dealt with by him in his order dated 22nd February, 1964, in connetion with the objection petition of C. D. Mihir Kumar Sarkar. For the reasons aforesaid the Certificate Officer rejected the objections.

4. From this order of the Certificate Officer there was an appeal before the Commissioner of Presidency Division, Calcutta, under Rule 86 of the Schedule II of the Income-tax Act, 1961. The Commissioner observed :

'It has been contended on behalf of the appellant that the Hindu undivided family had been disrupted long ago and that the assessment was pritna facie wrong and further the notice had been served on an employee of the Hindu undivided family and not on the individual members.'

5. The Commissioner observed that the Certificate Officer was wrong in saying that he could not go beyond the certificate filed by the Income-tax department. He further observed that it was incumbent under the new Act on the Tax Recovery Officer as well as the appellate authority to ascertain if the taxis due. Thereafter, the Commissioner observed that the Income-tax department had assessed the members individually when the property had been taken possession of by the receiver. The Commissioner was of the opinion that the income-tax department had proceeded id a perfunctory manner. According to the Commissioner, the income-tax department should have proceeded against the receiver and not against the individuals who constituted the Hindu undivided family that presumably did not exist when the income-tax department came into seisin of the matter. In these circumstances, the Commissioner allowed the appeal and set aside the order of the Tax Recovery Officer and the Additional District Magistrate, 24-Parganas.

6. The correctness and the propriety of the said order of the Commissioner have now been challenged before us in this application under Article 227 of the Constitution. It is first of all necessary to reiterate, as has been mentioned hereinbefore, that the assessment was in the name of a Hindu undivided family, namely, Messrs. Surendra Nath Sarkar and Bidhu Bhusan Sarkar and others, and the names of the members comprising the Hindu undivided family have also been stated. It has been stated by the respondent that there was no Hindu undivided family at the time and there could not have been an assessment on the Hindu undivided family. However, this contention could not be urged before the Tax Recovery Officer or before the Commissioner. Under Section 222 of the Income-tax Act, 1961, when an assessee is in default, the Income-tax Officer may forward a certificate to the Tax Recovery Officer. Here the assessee was the Hindu undivided family. Before the Tax Recovery Officer it was not open to the assessee to dispute the correctness of the assessment or the validity of the assessment. That is the provision of Section 224 of the Income-tax Act, 1961. If the contention of the assessee was that the Hindu undivided family was not the proper unit of assessment, for whatever reasons, it was for the assessee to take up the matter in appropriate proceedings under the Income-tax Act. The Tax Recovery Officer and the Additional District Magistrate, 24-Parganas has found in this case that the assessment was in the name of the Hindu undivided family and the certificate was also in the name of the Hindu undivided family. He has held that he could not go beyond the certificate field. The Commissioner in his order has stated that the Tax Recovery Officer was not correct on this point. We are unable to agree. It appears to us, in view of the clear provision of the law, that the Tax Recovery Officer and the Additional District Magistrate was clearly right on this aspect of the matter in this observation and the Commissioner was clearly in error when he held that it was the duty of the Tax Recovery Officer to investigate whether the Hindu undivided family was in existence at that point of time. It was then urged by Mr. Banerjee, learned advocate for the respondent, that on a proper reading of the assessment order and the certificate it was apparent that the income-tax department was not sure of the position and they had, according to Mr. Banerjee, assessed the individual members of the Hindu undivided family. We are unable to agree. As mentioned hereinbefore in the assessment order the status of the assessee has been clearly stated to be Hindu undivided family though the names of the individual members comprising the Hindu undivided family have also been stated. Further, in the assessment order it has been stated that the assessment was on the Hindu undivided family. We have referred to the relevant observations in the assessment order. Further, in the letter dated 30th August, 1961, this position has also been seiterated. The certificate was also in the s'amename. As the assessee in this case was the Hindu undivided family, the assessee in default was also the Hindu undivided family. That is also the requirement of Section 222 of the Income-tax Act, 1961. It also appears that notice of demand to' the defaulter under Rule 2 of the second Schedule of the Income-tax Act, 1961, was issued against the Hindu undivided family. Under Rule 1 (a) of the second Schedule of the Income-tax Act, 1961, 'defaulter' has been defined as the assessee mentioned in the certificate. Therefore, the notice that was issued to the 'defaulter' had also to be issued to the assessee. The next contention that was urged before the Tax Recovery Officer and the Additional District Magistrate, 24-Parganas, was that there was no service of notice of demand on the Hindu undivided family. The Tax Recovery Officer has found as a fact that the demand notice was received by one Nagendranath Ghosh, who is said to be a Karmachari of the Hindu undivided family. He has held that there has been proper service of notice of demand on the Hindu undivided family. This is a finding of fact. Mr. Banerjee, learned advocate for the respondent, submitted that the Tax Recovery Officer was clearly in error on this finding of fact. We are, however, unable to entertain this contention of Mr. Banerjee. It appears from the order of the Commissioner that he has recorded the contention urged on behalf of the assessee. He has observed that the contention was that the notice had been served on an employee of the Hindu undivided family and not on the individual members. This is precisely contrary to. what is now being contended on behalf of the assessee by Mr. Bonerjee. Mr. Banerjee states that the Commissioner has incorreptly recorded that contention and no such contention could have been made on behalf of his client. It is not possible for us in disposing of an application under Article 227 of the Constitution to allow Mr. Banerjee to urge this point. It has to be observed that in the affidavit-in-opposition to the proceeding in this court it has not specifically been recorded or stated that the Commissioner has wrongly or incorrectly recorded the contention made on behalf of Mr. Banerjee's client. Even assuming that the Commissioner has wrongly recorded the contention urged on behalf of Mr. Banerjee's client there is no finding of fact by the Commissioner reversing the decision of the Tax Recovery Officer on this aspect of the matter, namely, that there has been proper service of notice on the Hindu undivided family and that Nagendranath Ghosh was an employee of the Hindu undivided family. We have, therefore, to proceed on the basis that the Commissioner has upheld that finding. This court, in exercising its jurisdiction under Article 227 of the Constitution, cannot reverse that finding of fact. It has to be reiterated that this is not such a finding of fact upon which the jurisdiction of either the Tax Recovery Officer or the Commissioner to decide the objection or appeal respectively depended. It may be that an authority cannot by wrongly deciding a question of fact assume a jurisdiction which it does not otherwise possess and, in that case, it may become necessary in an application under Article 227 of the Constitution to investigate whether that finding is correct or not. This, however, is not such a finding of fact. The Tax Recovery Officer as well as the Commissioner had jurisdiction to decide the question irrespective of whatever the finding that might be arrived at on this aspect of the matter. Therefore, it appears to us that we have to proceed on the basis there has been a proper service of notice of demand upon the Hindu undivided family. There is some controversy about the last contention that was urged before the Tax Recovery Officer. The Tax Recovery Officer has observed : 'The third contention of the petitioners regarding realisation of the tax from the receivers only, has not been pressed. Moreover, I have fully dealt with this point in my order dated February 22, 1964, in connection with the objection petition of C.D. Mihir Kumar Sarkar.' If that was the position the Tax Recovery Officer is clearly right. The Commissioner has observed that he was unable to see why the Tax Recovery Officer has not considered this aspect of the matter. Mr- Banerjee states that no contention was given up before the Tax Recovery Officer. Whatever may be the position it appears from the affidavit of Ajit Kumar De affirmed on 26th July, 1966, and filed in this application on behalf of the respondent that objection before the Tax Recovery Officer on this aspect of the matter was on the following ground : 'On the facts and in the circumstances of the case, the learned Tax Recovery Officer could proceed only against the receivers but not directly against the assessee, as he did.' (Paragraph 6(b) of the said affidavit). If that was the objection before the Tax Recovery Officer then quite apart from the question whether it was pressed or not the Tax Recovery Officer was quite right in not upholding it, in view of what has been stated hereinbefore. Whether subsequent steps can be taken in respect of properties in pursuance of the order of the Tax Recovery Officer without the leave of this High Court because of the fact that receivers have been appointed in respect of these properties is not a matter which was for adjudication before the Tax Recovery Officer. In this connection reference may be made to paragraph 13 of the said affidavit of Ajit Kumar De. It, therefore, appears to us that the order of the Commissioner dated 4th December, 1965, is clearly erroneous being contrary to the relevant provisions of law and facts on record. It cannot, therefore, be sustained. There are errors of law on the face of the record.

7. In the result this application is allowed and the rule is made absolute The order of the Commissioner, Presidency Division, dated 4th Decembere 1965, is hereby set aside and the order of the Tax Recovery Officer and the Additional District Magistrate, dated 17th August, 1964, in Case No. 44 I.T.B. of 1963-64(X) is restored. There will be no order as to costs.

Arun K. Mukherjea, J.

I agree.


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