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Syed Mubarik Shah Naquashbandi Vs. Income-tax Officer (Salary Circle) - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtJammu and Kashmir High Court
Decided On
Case NumberLetters Patent Appeal No. 7 of 1968
Judge
Reported in[1979]120ITR378(J& K)
ActsIncome Tax Act, 1922 - Section 46(2), 42(5) and 42(7)
AppellantSyed Mubarik Shah Naquashbandi
Respondentincome-tax Officer (Salary Circle)
Appellant AdvocateParty in person
Respondent Advocate S.T. Hussain, Adv.
Cases ReferredAnnapurna Match Industries v. Union of India
Excerpt:
- dr. anand, j.1. this letters patent appeal is directed against the judgment of a learned single judge of this court, j. n. bhat j., in writ petition no. 86 of 1966, decided on september 19, 1968. the learned single judge partly accepted the writ petition and partly dismissed it. the claim of the appellant for the refund of rs. 1,410.66 was rejected. refund was allowed to the petitioner of rs. 497.84. 2. the appellant is an income-tax assessee from whom a demand of rs. 1,787.97 was made by the ito, vide communication no. 1491, dated august 24, 1959. this demand made by the department was contested by the appellant. on september 1, 1959, vide letter no. 1832, the ito claimed a sum of rs. 2,337.62 as the arrears. the appellant controverted this also and submitted before the ito that in view.....
Judgment:

Dr. Anand, J.

1. This Letters Patent Appeal is directed against the judgment of a learned single judge of this court, J. N. Bhat J., in Writ Petition No. 86 of 1966, decided on September 19, 1968. The learned single judge partly accepted the writ petition and partly dismissed it. The claim of the appellant for the refund of Rs. 1,410.66 was rejected. Refund was allowed to the petitioner of Rs. 497.84.

2. The appellant is an income-tax assessee from whom a demand of Rs. 1,787.97 was made by the ITO, vide Communication No. 1491, dated August 24, 1959. This demand made by the department was contested by the appellant. On September 1, 1959, vide letter No. 1832, the ITO claimed a sum of Rs. 2,337.62 as the arrears. The appellant controverted this also and submitted before the ITO that in view of Section 46(7) of the Indian I.T. Act, 1922, proceedings for the recovery of the amount could not be taken against him after the expiration of one year from the last day of the financial year in which any demand was made under the Act. In spite of this submission, the ITO, vide his letter dated April 2, 1960, intimated to the appellant that a sum of Rs. 2,500 was outstanding againstthe appellant. On a request made by the appellant, he was furnished with the details of the amounts due from him in respect of each assessment year together with the date of assessment and the particulars of the officer to whom recovery certificate was issued, along with number and date of the certificate. The appellant made enquiries from the Treasury Officer and the Tehsildar, Srinagar, Both these officers denied to have received any certificate of recovery from the I.T. department. The appellant approached the I.T. department and appraised them of this position with a view to impress upon them that no recovery could be made from him in view of Section 46(2), Section 46(5) and Section 46(7) of the Indian I.T. Act of 1922. He then made a representation to the IAC who informed the appellant that the matter be discussed with the concerned ITO. The appellant approached the ITO but the latter was not available. Subsequently, it transpires that the ITO passed an order asking the National and Grindlays Bank Ltd., Srinagar, to deduct a sum of Rs. 1,908.50 from the account of the appellant. This amount included a sum of Rs. 497 84, about which a demand notice and challan had been issued on January 21, 1964. Before the learned single judge the main ground of attack made by the appellant was that the recoveries were sought to be made after one year from the last date of the financial year when the amount fell due and as such the proceedings were barred under Section 46(7) of the Indian I.T. Act of 1922. In so far as the demand of Rs. 497 84 was concerned, the grievance of the appellant was that the notice of demand in respect of this amount had been made on January 21, 1964, but the direction by the ITO had been given to the National & Grindlays Bank Ltd., Srinagar, by means of letter dated January 18, 1964, and that direction having been issued prior to the service of notice was not authorised by law. It was urged before the learned single judge that no recovery could be made before the expiration of 35 days from the service of the notice on the assessee. The writ petition was resisted by the ITO and it was maintained that the proceedings were started for the recovery of the amount within the stipulated period of one year. It was also stated in the affidavit of the ITO that proper recovery certificate had been issued to the Tehsildar and to the Treasury Officer.

3. The learned single judge found merit in the contention of the appellant with regard to the invalidity of the deduction of Rs. 497.84 and allowed the writ petition to that extent. He, however, declined to grant the refund in respect of the other amount recovered from the account of the appellant from the National and Grindlays Bank Ltd., Srinagar.

4. The appellant who has argued his case in person has submitted that the learned single judge fell in error in holding that the recovery certificates and requisitions had been actually received by the Tehsildar and the Treasury Officer. It is urged that the reliance placed upon theextract from some register was misplaced and such an extract could not be relied upon. It is contended that the said register from which the relevant extract is supposed to have been made was not produced before the learned single judge despite a demand having been made to that effect. It is also contended that the observations of the learned single judge to the effect, ' that the Tehsildar and the Treasury Officer have also admitted later on that recovery certificates were received by them, as alleged by the Income-tax Officer ' is not at all borne out from the record of the case and by importing these wrong facts into the judgment the learned single judge has arrived at a wrong conclusion. The appellant has a grievance that his arguments have not been fully noticed, let alone appreciated, by the learned single judge. It has been vehemently argued that the Treasury Officer and the Tehsildar had not received any recovery certificate or requisitions from the ITO with respect to the disputed amount and, therefore, the order of recovery was illegal and could not be sustained. Our attention has been invited to various paragraphs of the writ petition and in particular to paras. 8, 10 and 12 of the writ petition and various documents attached to the petition in support of the submissions made before us.

5. For a proper appreciation of the point in controversy, it would be relevant to first notice the relevant provisions of Section 46 of the I.T. Act. This section deals with the mode and time of recovery of arrears of tax when an assessee is in default.

6. Section 46(2) provides :

' (2) The Income-tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from an assessee, and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue :

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 in respect of the attachment and sale of debts due to the assessee the powers which under the Code of Civil Procedure, 1908, a civil court has in respect of the attachment and sale of debts due to a judgment debtor for the purpose of the recovery of an amount due under a decree.'

7. Section 46(5) provides :

'(5) If any assessee is in receipt of any income chargeable under the head ' Salaries ' the Income-tax Officer may require any person paying the same to deduct from any payment subsequent to the date of such requisition any arrears due from such assessee, and such person shall comply with any such requisition, and shall pay the sum so deducted to the credit of the Central Government, or as the Central Board of Revenue directs.'

8. Section 46(7) provides:

' (7) Save in accordance with the provisions of Sub-section (1) of Section 42, no proceedings for the recovery of any sum payable under this Act shall be commenced after the expiration of one year from the last day of the year in which any demand is made under this Act.'

9. The provisions under Sub-section (2) of Section 46 do not have the effect of converting arrears of income-tax into arrears of land revenue and the provision simply extends the procedure prescribed for recovery of arrears of land revenue to the recovery of arrears of income-tax. A careful reading of the section shows that a discretion has been conferred on the ITO to forward to the Collector a certificate under his signature, specifying the amount of arrear due from an assessee for effecting recovery from the defaulting assessee. He may not seek the assistance of the Collector or the Treasury Officer and may adopt the other course under the I.T. Act for recovery of the arrears. Moreover, if the ITO exercises this discretion and forward to the Collector the requisite certificate, the Collector on receipt of such a certificate has no option but to proceed to recover from the assessee the amount specified therein as if it were an arrear of land revenue. In the instant case, the ITO had adopted that course but from a perusal of the record it transpires that there is no evidence to show that the Collector or the Treasury Officer had actually received any certificate from the ITO. How then did the authorities proceed to recover the arrears in the manner in which it has been done in this case is not understandable. The extract produced from the register could not have been relied upon as any proof of the ' receipt ' of the recovery certificate by the Collector or the Treasury Officer. The appellant filed an affidavit to the effect that he had made a demand from the ITO to supply him the copies of the recovery certificates allegedly issued to the Treasury Officer and the Collector as also the copies of the correspondence exchanged and that the ITO wrote back to the appellant that he should approach the Treasury Officer and the Tehsildar and the other higher authorities directly to obtain the copies of the documents asked for. The appellant was, however, permitted to inspect the record of the ITO. It has further been sworn by the appellant that the record shows that neither the Treasury Officer nor the Tehsildar had received any recovery certificates from the ITO with respect to the appellant. As a matter of fact, the Treasury Officer and the Tehsildar also informed the appellant in writing that they had not received any requisition or recovery certificates from the ITO. The recovery could then not have been made in the manner in which it was made in this case. The recovery proceedings were not warranted by law and the learned single judge fell into an error in surmising that the recovery certificates had been received by the Tehsildar and the Treasury Officer.

10. A perusal of Section 46(7) shows that the Legislature has placed an embargo on the commencement of the proceedings for the recovery of any sum payable under the I.T. Act. No proceedings, for recovery of arrears of tax, can be commenced after the expiry of one year from the last day of the year in which the demand is made. The respondent has failed to establish that proceedings were commenced within one year from the last day of the year in which the demand for recovery was made. The respondent did not produce any record or other evidence to show that proceedings had been commenced by them within the stipulated period. The burden was on the respondent to establish that the proceedings had commenced within the prescribed period. The findings of the learned single judge that the proceedings commenced within the prescribed period cannot be supported from any material on the record. The learned counsel appearing for the respondent has also not been able to satisfy us as to how that finding of the learned single judge can be sustained. Since the respondent has failed to commence the proceedings for the recovery of the alleged arrears of tax within the period prescribed under Section 46(7) of the Indian I.T. Act, 1922, he was debarred from making any recovery from the appellant. The recovery proceedings were not authorised by law and the appellant was entitled to the writ prayed for by him.

11. Mr. S. T. Hussain has, however, argued that even if the findings of the learned single judge with regard to the commencement of proceedings within the stipulated period be not supportable from the material on the record and even if the recovery proceedings were not sustainable in law, the judgment of the learned single judge could not be assailed since no petition can lie for the simple refund of income-tax alleged to have been wrongfully recovered from an assessee and that the remedy of the assessee, if any, is by way of a civil suit. It is argued that no writ of mandamus can be issued directing the refund of income-tax wrongfully recovered. Reliance in this respect is placed by the learned counsel on a judgment of the Supreme Court in Suganmal v. Stale of Madhya Pradesh : [1965]56ITR84(SC) , wherein their Lordships have opined thus :

' ....though the High Courts have power to pass any appropriate order in the exercise of the powers conferred on them under Article 226 of the Constitution, a petition solely praying for the issue of a writ of mandamus directing the State to refund the money alleged to have been illegally collected by the State as tax is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax, and in such a suit it is open to the State to raise all possible defences to the claim,defences which cannot, in most cases, be appropriately raised and considered in the exercise of writ jurisdiction.'

12. Reference has been made to the prayer of the petitioner in this writ petition, viz. :

' that the petitioner humbly prays that this hon'ble court may be pleased to send for the relevant record from the respondent and thereafter be pleased to issue a writ of mandamus, certiorari or other appropriate writ, direction or order in respect of the refund to him of the sum of Rs. 1,908.50 illegally recovered from him by the Income-tax Officer.'

and it is urged that in view of the judgment in Suganmal's case : [1965]56ITR84(SC) , the writ petition was liable to be dismissed and in that view of the matter the L.P.A. be dismissed. It is pertinent to mention here that no such objection was taken by the respondent in the return filed by him, and the respondent cannot be ordinarily allowed to raise the point here for the first time. However, I shall deal with the objection since it is legal in nature.

13. The authority (Suganmal's case : [1965]56ITR84(SC) ) seemingly supports the argument raised by Mr. S.T. Hussain. However, a careful perusal of that case shows that the same is distinguishable and the law laid down therein is not applicable to the facts of the present case. In Suganmal's case : [1965]56ITR84(SC) the facts were quite different. In that case the assessment orders had been quashed in appeal by the appellate authority in an appeal under the Act but the appellate authority had failed to give any direction for the refund of tax. The appellant filed a petition under Article 226 of the Constitution praying for a direction for the refund of the amount which had been illegally collected from him by the Industrial Tax Officer in view of the quashing of the orders of assessment by the appellate authority. It was under these circumstances that the Supreme Court held that no petition for the issue of a writ of mandamus would be normally entertained for the purpose of merely ordering the refund of the tax to the return of which the appellant claimed a right.

14. In the facts and circumstances of the instant case the order of demand has not been found to be invalid by the appellate authority, but the same has been found to be invalid by this court. Once the court has found that the tax paid by the assessee was paid on the basis of invalid proceedings and that the recovery proceedings could not have been taken, it is within the jurisdiction of this court to issue an appropriate writ of mandamus directing the refund of the tax which was illegally recovered from the appellant. Reference in this connection may be made with advantage to State of Madhya Pradesh v. Bhailal Bhai : [1964]6SCR261 , wherein their Lordships opined thus (AIR, headnote) :

' Where sales tax, assessed and paid by the dealer, is declared by a competent court to be invalid in law, the payment of tax already made is one made under a mistake within Section 72 of the Contract Act and so the Government to whom the payment has been made by mistake must in law repay it. In this respect, the High Court has, in exercise of its jurisdiction under Article 226 of the Constitution of India, power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realised by the Government without the authority of law.'

15. Reference may also be made to a Division Bench of the Andhra Pradesh High Court in Annapurna Match Industries v. Union of India : AIR1971AP69 , where in somewhat similar circumstances the Bench issued a writ directing the respondents to refund the duty which had been wrongfully collected by them from the petitioner.

16. The law laid down in the aforesaid authorities is fully applicable to the facts of the present case and being in respectable agreement with the view propounded therein, I would hold that the appellant cannot be nonsuited on the ground urged by Mr. Hussain. Although in the writ petition the prayer made by the appellant is to the effect that the refund be directed to be made to him, that prayer has to be viewed in the context of the averments made in the petition. It is noteworthy that the appellant in the writ petition challenged the recovery proceedings, the order of recovery, and maintained that the recovery made was illegal. It is true that in the petition no specific prayer has been made for the quashing of the order of recovery but this, in our view, has been due to sheer inadvertance as otherwise there does not seem to be any need in attaching the orders of recovery along with the writ petition. Since we have found that the recovery proceedings were not authorised by law and were not sustainable, the appellant is entitled to the relief of having the orders of recovery quashed and also to the consequential relief of the refund of the amount illegally recovered from him.

17. In view of the aforesaid discussion, this appeal is accepted. The recovery proceedings and the order of recovery made by the respondent are hereby quashed. The judgment of the learned single Judge, to the extent it dismissed the writ petition of the appellant, is set aside. The appellant is entitled to the writ prayed for and the respondents are hereby directed to refund to the appellant the amount which was illegally recovered from him.

18. No costs so far as the appeal is concerned.


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