Himangshu Sekhar Chakravorty vs Tax Recovery Commissioner and Others

K. Lahiri, J.—The following core questions have been propounded in this application under Article 226 of the Constitution :

"(i) Whether on withdrawal or cancellation of the recovery certificate by the Income Tax Officer u/s 224 of the Income Tax Act, 1961, for short ''the Act'', the Tax Recovery Officer can proceed with the recovery proceedings under ''the Act''? If so, whether, in the case in hand, the Income Tax Officer withdrew or cancelled the recovery certificate issued by him?

(ii) Whether the impugned recovery certificate dated April 12, 1954, was barred u/s 46 of the Indian Income Tax Act, 1922, for short ''the old Act'', read with Section 231 of the ''the new Act'' ?

(iii) Whether the recovery proceedings under ''the Act'' are void, illegal and without jurisdiction in the absence of a valid and enforceable recovery certificate and, therefore, the proceedings should be quashed, the respondents be prohibited from and ordered not to give effect to the acts or actions in the course of the recovery proceedings and/or grant appropriate relief to the petitioner including an order restoring the property sold in the recovery proceedings ?"

The application of the doctrine of consummation of statutory remedy as a bar to the exercise of the jurisdiction under Article 226 of the Constitution in Fiscus (Fiscal) Laws:

Dr. Saraf, learned counsel for the respondents, has taken a preliminary objection that the application is not maintainable. Learned counsel submits that the Income Tax Act provides a complete machinery relating to assessment, levy and collection of Income Tax and has also constituted forums for obtaining relief in respect of improper or erroneous orders made by the revenue authorities. On this premise, it has been contended that this court has no jurisdiction to entertain the writ petition directed against the impugned acts, actions and orders.

In short, learned counsel endeavours to apply the doctrine of exhaustion of statutory remedies as a bar to the exercise of jurisdiction under Article 226 of the Constitution. It is true that the court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Article 226 where the party invoking the jurisdiction has an effective, adequate, alternative remedy. The limitation that before asking for relief under Article 226, the party must exhaust all alternative remedies is nowhere to be found in the Constitution. It is a rule of convenience and discretion rather than a rule of law. The existence of an alternative remedy does not oust the jurisdiction of the court. In some illustrative cases, the Supreme Court has directed the High Courts not to exercise the extraordinary jurisdiction under Article 226 when an alternative remedy exists but in some other cases, it has been ruled that the High Court is competent to exercise jurisdiction notwithstanding the existence of an alternative remedy. Where questions of infringement of fundamental rights arise, or where on undisputed facts, the taxing authorities are shown to have assumed jurisdiction not vested in them by law or where the authorities have assumed jurisdiction which they do not possess and the orders and directions result in grave injustice to the party, the doctrine of consummation of statutory remedy may not be applicable. The exercise of power under writ jurisdiction is discretionary and may be exercised where the order made, on the face of it, is erroneous, resulting in injustice. These are culled from Shivram Poddar Vs. Income Tax Officer, Central Circle II, Calcutta, and Another, Sales Tax Officer, Jodhpur and Another Vs. Shiv Ratan G. Mohatta, Tata Engineering and Locomotive Company Ltd. Vs. Assistant Commissioner of Commercial Taxes and Another, Bhopal Sugar Industries Ltd., Madhya Pradesh and Another Vs. D.B. Dube, Sales Tax Officer, Bhopal Region, Bhopal and Another, and Gita Devi Aggarwal Vs. Commissioner of Income Tax, West Bengal and Others, . In L. Hirday Narain Vs. Income Tax Officer, Bareilly, the Supreme Court has ruled that when the High Court had entertained the writ petition despite availability of an alternative remedy and heard the parties on merits, it would be unjust to dismiss the same on the ground of non-exhaustion of statutory remedies. In that case, by the time the High Court had heard the parties on merits, the limitation provided for availing of the remedy had expired. The right to approach the High Court under Article 226 of the Constitution in respect of the commencement of the reassessment proceedings has been outlined in Calcutta Discount Company Limited Vs. Income Tax Officer, Companies District, I and Another, . Indeed, where the bare question involved is whether the conclusion reached by the taxing authority on the question of fact is correct or incorrect, the High Court should not exercise writ jurisdiction : vide Thansingh Nathmal and Others Vs. A. Mazid, Superintendent of Taxes, We are of the view that it is a settled principle that certiorari will go only where there is no other effective and convenient remedy. We are also of the view that the statutory system of appeal has been created for more effective and more convenient disposal of the cases before the appropriate appellate authority. Further, the party can question the validity of the findings of fact as well as issues relating to law and violation of the principles of natural justice even before the appellate or revisional authority created by the statute. However, there cannot be any doubt that an application for certiorari has the advantage that it is speedier and cheaper than the other method. In Ram and Shyam Company Vs. State of Haryana and Others, the Supreme Court dealt with the question as to whether the existence of an alternative remedy ousts the jurisdiction of the High Court under Article 226 and held that the alternative remedy must be effective in the real sense of the term. It has been held that the doctrine of exhaustion of the alternative remedy is a rule of convenience and discretion rather than a rule of law. Their Lordships referred and considered various cases including State of U.P. v. Mohammad Nooh, AIR 1958 SC 86 . It has been ruled that where the impugned order complained against is alleged to be illegal or invalid as being contrary to law, a petition by a person adversely affected by the order would lie to the High Court under Article 226 of the Constitution. It has been held Ram and Shyam Company Vs. State of Haryana and Others,

"An appeal in all cases cannot be said to provide in all situations an alternative effective remedy keeping aside the nice distinction between jurisdiction and merits."

However, the expression "jurisdictional error" has various facets and there is no unchartered calm sea which affirmatively divides the line between "jurisdictional error" and "non-jurisdictional error". It is difficult to say where one ends and the other begins. However, in the instant case, a Division Bench admitted the writ petition in 1975. The parties appeared. The period of limitation for preferring appeals against the impugned orders is long over and we have heard the parties. Situated thus, we do not propose to dismiss the application without determining the questions posed, on the basis of the law laid down by the Supreme Court in L. Hirday Narain Vs. Income Tax Officer, Bareilly,

The factual matrix of the case :

The case of the petitioner : The petitioner claims that he was assessed to Income Tax of Rs. 9,357 for the assessment years 1948-49 and 1949-50 and a demand was issued by the Income Tax Officer, on March 9, 1953. He defaulted in making the payment and "the Income Tax Officer" issued the impugned certificate u/s 46(2) of the Indian Income Tax Act, 1922, for short "the old Act", marked annexure ''A'' to the writ petition. It was sent to the Collector-cum-Tax Recovery Officer, for recovery of Rs. 10,017 and annas 9 only. He claims that the recovery proceedings continued but the Tax Recovery Officer by his order dated September 28, 1966, on the authority of the order of the Income Tax Officer, dropped the proceedings arising out of the impugned certificate, marked annexure ''A''. Thereafter, he received two notices from the Tax Recovery Officer demanding payment of Rs. 17,586-56 for the tax arrears including interest. The interest, amounting to Rs. 8,228, was calculated u/s 220(2) of the "new Act". The notices were issued in pursuance of the certificate, marked annexure ''A''. He filed an application to the Tax Recovery Officer stating that the provisions of Section 220(2) of the "new Act" were inapplicable to his case. However, being oblivious of the past records of the case, he submitted that the principal amount, if due, might be recovered by sale of his immovable properties located at Lola Town, District Cachar. He claims that the admission of the liability under the certificate (annexure ''A'') was inadvertently made as the certificate proceedings had already been withdrawn by the Income Tax Officer. Thereafter, a sale proclamation was issued on October 10, 1974, which, inter alia, stated that his properties at Lala Town would be sold in public auction (annexure ''F''). The warrant of sale was issued on November 12, 1974, to realise the principal amount with costs. On receipt of the notice, he sent an express telegram to the Income Tax Officer, on May 21, 1974, praying for remission of costs and stay of its execution. He made the same prayers before the Tax Recovery Officer. The prayers were turned down.

He claims that he did not question the validity of the recovery of the principal amount as the fact slipped from his memory that the proceedings had already been withdrawn or cancelled. Thereafter, the auction sale was held and the plot of land with godown at Lala town was sold for Rs. 10,015 on November 28, 1974. Another warrant dated December 7, 1974, was issued for realisation of cost. The petitioner preferred an appeal under Rule 86(i)(c) to the Tax Recovery Commissioner, Shillong, and claimed that the Tax Recovery Officer misdirected himself in refusing to amend the proclamation and warrant of sale. It appears from the order of the Commissioner (annexure ''L'' to the writ petition) that the petitioner had complained about the misdescription of the boundary of the property sold and other irregularities in the sale proclamation. The Commissioner by an exhaustive order rejected the appeal by his order dated March 3, 1975. Thereafter, the Tax Recovery Officer issued the certificate of sale in favour of respondent No. 6, the auction purchaser. The petitioner has questioned the existence and the validity of the certificate marked annexure ''A'' to the writ petition.

The case of the respondents: Respondents Nos. 1 to 5 including the Tax Recovery Officer and the Income Tax Officer filed a joint affidavit-in-opposition and stated, inter alia, that the petitioner was assessed to Income Tax for the years 1948-49 and 1949-50 and the demands raised were Rs. 6,615 and annas 2 only and Rs. 2,742 and annas 3 only for the respective assessment years. The assessment proceedings for the years were completed by the Income Tax Officer on March 20, 1953. However, a combined recovery certificate u/s 46(2) of the "old Act" was issued by the Income Tax Officer, vide annexure ''A''. It has been affirmatively stated that the recovery certificate No. 27H, dated April 12, 1954 (annexure ''A''), issued by the Income Tax Officer to the Tax Recovery Officer was never cancelled or withdrawn. Apart from the recovery proceedings relating to the certificate, there were two tax recovery proceedings against the assessee-petitioner being Bakijai Cases Nos. 5 of 1961-62 and 9 of 1963-64. Those Bakijai cases were for the recovery of demands from the petitioner as the partner of M/s. Surma Valley Foodgrains Syndicate, "the firm" for short. The said cases were dropped, vide order of the Income Tax Officer marked annexures ''A'' and ''B'' to the affidavit-in-opposition filed by the respondents. Annexure ''A'' corresponds to annexure ''C'' of the writ petition. It appears that all Bakijai cases against the petitioner were amalgamated as one and numbered as Bakijai Case No. 10 (Central) of 1963-64 by the Tax Recovery Officer. In short, the respondents have categorically stated that at no point of time and for no reason whatsoever the certificate marked annexure ''A'' to the writ petition had been withdrawn or cancelled by the Income Tax Officer. The respondents have clearly stated that the order dated September 28, 1966, by the Tax Recovery Officer marked annexure ''B'' to the writ petition was the order of dropping Bakijai Cases Nos. 5 of 1961-62 and 9 of 1963-64 which related to the recovery proceedings against the petitioner as partner of "the firm", and which had nothing to do with the proceedings in respect of recovery certificate marked annexure ''A'' to the writ petition. The firm assertion of the respondents in the affidavit-in-opposition that the Income Tax Officer never cancelled or withdrew the recovery certificate marked annexure ''A'' has not been countered by the petitioner. Indeed, there must be some cause for the cancellation or withdrawal of the recovery certificate. It may be done on the basis of an appellate order or on recovery of the dues from the assessee or for some such reasons. We, therefore, find that the respondents have categorically asserted that the recovery certificate issued on April 12, 1954, was never withdrawn or cancelled by the Income Tax Officer or the Tax Recovery Officer. The respondents including the Tax Recovery Officer have categorically stated that the order dated September 28, 1966, dropping the proceedings against the petitioner was in respect of the proceedings relating to demand under the excess profits tax in his capacity as partner of "the firm". The respondents have also produced records to show that the recovery certificate was never withdrawn or cancelled by the Income Tax Officer. We find enough material to show that the impugned recovery certificate, marked annexure ''A'', was never withdrawn or cancelled by the Income Tax Officer. We also find on a perusal of the order dated November 25, 1965, passed by the Tax Recovery Officer in Bakijai case that the Income Tax Officer had dropped Bakijai Cases Nos. 5 of 1961-62 and 9 of 1963-64 and the case arising out of the impugned recovery certificate, marked annexure ''A'' to the writ petition, was never dropped by the Income Tax Officer. We also find from the assertions made by the Income Tax Officer that his letter dated September 22, 1966, dropping the proceedings against the petitioner was in respect of the proceedings in the aforesaid Bakijai cases which had nothing to do with the recovery certificate marked annexure ''A'' to the writ petition. The respondents have stated that the recovery certificate was not barred by limitation u/s 46(7) of the "old Act" as claimed by the petitioner. It has been asserted by the respondents that the certificate marked annexure ''A'' which was for realisation of Rs. 10,017 and annas 9 only for the assessment years was issued on March 30, 1954, and the same was within the period of "one year from the last day of the financial year in which the demands were made under the Act". The demands were made on March 6, 1953, and March 9, 1953. The demand made on March 6, 1953, was for the assessment year 1948-49 which was revised and a fresh demand notice was issued on October 7, 1953. That apart, it has been asserted by the respondents that the petitioner had been granted liberty to make monthly instalments at Rs. 1,600 payable on the 20th of each month commencing from October, 1953, for the payment of the entire demand for the assessment years 1948-49 and 1949-50. As such, the respondents have affirmatively asserted that the recovery certificate marked annexure ''A'' was filed well within the limitation of one year "from the last day of the financial year in which the demand was made under the Act". The petitioner has not countered any of the said statements.

The contentions : Two contentions have been raised by the petitioner. First, that the Income Tax Officer in exercise of his power u/s 224 of the Income Tax Act, 1961, had withdrawn or cancelled the certificate dated April 12, 1954, and on the basis thereof, the Tax Recovery Officer dropped the proceedings by his order dated September 28, 1966, marked annexure ''B'' and, therefore, the entire recovery proceeding was invalid in the absence of a subsisting recovery certificate against him. The second contention is that the certificate dated April 12, 1954, issued by the Income Tax Officer was barred u/s 46(7) of the Indian Income Tax Act, 1922, "because the proceeding was not started within one year of making the relevant demand", (vide para 16 of the writ petition).

Let us now proceed to consider the questions posed by the petitioner. We have no manner of doubt that on withdrawal or cancellation of a recovery certificate by the Income Tax Officer acting u/s 224 of the Income Tax Act, 1961, for short "the Act'''', the Tax Recovery Officer cannot continue with the recovery proceedings against an assessee. Section 224 of the Act empowers the Income Tax Officer to withdraw or correct any mistake, clerical or arithmetical, in the recovery certificate. In support of the contention, Mr. B.K. Acharya, learned counsel for the petitioner, has relied on Behari Lal Ramcharan Kothi Vs. Income Tax Officer, B-Ward and Another, which has laid down that the Income Tax Officer has power to withdraw a recovery certificate and on such withdrawal, even if it was made under an error of judgment, the Tax Recovery Officer is bound to stop the recovery proceedings. It has further been held that once the certificate is cancelled or withdrawn by the Income Tax Officer, in the absence of issuance of any fresh certificate or valid certificate, there could be no legal sanction for the recovery proceedings. The Tax Recovery Officer is a creature of statute. It can recover the demand in accordance with the law, when armed with a valid and existing recovery certificate issued by the Income Tax Officer. In the absence of any valid recovery certificate, the Tax Recovery Officer is not authorised by law to proceed against any person to recover any amount. It would, therefore, appear that when the Income Tax Officer withdraws or cancels a certificate acting u/s 224 of the Act, the Tax Recovery Officer is bound to stop the proceedings. If he proceeds to recover any amount in the absence of a valid certificate, it would amount to an action without any authority of law and the proceedings are liable to be quashed. A recovery certificate issued by the Income Tax Officer u/s 223 of the Act continues to be effective until it is withdrawn and/or the demand is satisfied in accordance with the provisions of the Act and the Rules.

Now, let us consider the second facet of the contention, that is, the claim of the petitioner that the impugned certificate, marked annexure "A", had been withdrawn or cancelled by the Income Tax Officer and in pursuance thereof the Tax Recovery Officer dropped the proceedings against him. We are, therefore, to consider whether the Income Tax Officer, the competent authority, withdrew or cancelled the certificate. The petitioner has relied on the letter of the Income Tax Officer which does not show that the impugned certificate in question was withdrawn by the Income Tax Officer. The petitioner has also relied on the order of the Tax Recovery Officer, which, in turn; also does not show that the impugned certificate was withdrawn or cancelled by the Income Tax Officer. It has been affirmatively stated by the respondents, including the Income Tax Officer, that the impugned certificate marked annexure "A" to the writ petition had never been withdrawn or cancelled. The petitioner has not placed before us any order of the Income Tax Officer withdrawing or cancelling the impugned certificate marked annexure "A". It could be withdrawn if it was found to be invalid or the assessee had paid up the amount or the demand was set aside by a higher authority. The petitioner has not stated that it was withdrawn after he had paid up the arrears. He has not claimed that the certificate was withdrawn or cancelled by the appellate or revisional authority. The petitioner has not stated any reason why it could be withdrawn or cancelled by the Income Tax Officer. On the other hand, the Income Tax Officer has affirmatively stated that the certificate was never withdrawn for any cause whatsoever. We find from the records that there is no material to show that the Income Tax Officer ever withdrew or cancelled the certificate. As such, there is no valid order of the Income Tax Officer withdrawing or cancelling the impugned certificate. The letter of the Income Tax Officer dropping the Bakijai proceedings against the petitioner and the corresponding order of the Tax Recovery Officer were in respect of Bakijai Cases Nos. 5 of 1961-62 and 9 of 1963-64, which had nothing to do with the impugned certificate. The statements have been asserted by the respondents, including the Income Tax Officer, and those were not countered by the petitioner. Situated thus, we are constrained to hold that there is no material to show that the Income Tax Officer withdrew or cancelled the impugned certificate. Further, the claim of the petitioner that the letter of the Income Tax Officer and the corresponding order of the Tax Recovery Officer were in respect of the impugned certificate cannot have any foundation in view of the fact that, on several occasions, the petitioner conceded the right of recovery of the principal amount of the certificate. The petitioner never questioned before any authority that the proceedings were invalid as the Income Tax Officer had withdrawn or cancelled the impugned certificate. There are clear admissions of the petitioner that the certificate was valid and subsisting. The plea of the petitioner that he was oblivious of the fact of withdrawal or cancellation of the certificate and, therefore, agreed that his property might be sold in auction for recovery of the certificate amount is an afterthought. Even the statements of fact that the admissions were made forgetting the order of withdrawal of the certificate have not been made by the petitioner. The statement has been affirmed by the petitioner''s employee. Be that as it may, we do not find material to hold that the Income Tax Officer ever withdrew or cancelled the impugned certificate. We are of the firm opinion that the letter of the Income Tax Officer and the follow up order of the Income Tax Officer dropping the proceedings were in respect of different cases and did not pertain to the impugned certificate marked annexure "A" to the writ petition. As such, the contention fails.

The last contention of the petitioner is that the recovery certificate dated April 12, 1954, was barred u/s 46(7) of "the old Act" because the proceeding was not started within one year of making the relevant demand. It would, therefore, appear that the validity of a certificate issued in 1954 has been challenged in the year 1975 as barred by limitation. Section 46(2) of the old Income Tax Act did not deal with the period of limitation. Even the petitioner has not correctly quoted the section under which the certificate was allegedly barred by limitation. Let us assume that it was barred by limitation u/s 46(7) of the "old Act". The ground taken in the petition is also vague. A bald statement has been made that the proceeding was "not started within one year of making the relevant demand". On the basis of such statement of fact, it is hardly possible to decide the issue and on that ground alone, the contention is liable to be rejected. Section 46(7) of the "old Act'''' corresponding to Section 231 of the present Act deals with the period for commencing "recovery proceedings". Recovery proceedings under the "old Act" could be commenced within one year from the last day of the financial year in which any demand was made. The proviso to Section 46(7), inter alia, provided that where the sum payable was allowed to be paid by instalments, the period of one year should be reckoned from "the date on which the last date of such instalment was due". There is no assertion that no proceeding for the recovery was commenced beyond the, expiration of one year from the last day of the financial year in which the demand was made under "the old Act". As such, the statement of facts do not bring the case within the purview of Section 46(7) of "the old Act". Further, the petitioner suppressed the fact that he was allowed to pay the arrears by monthly instalments. The respondents have categorically asserted that the assessment proceedings for the assessment year 1948-49 were completed by the Income Tax Officer on February 20, 1953, and on completion of the assessment proceedings, demands were made on March 6, 1953, and March 9, 1953. The demand made on March 6, 1953, for the assessment year 1948-49 was revised and a fresh demand notice dated March 7, 1953, was issued with revised demand. These apart, the petitioner was allowed to pay the sum by monthly instalments of Rs. 1,600 payable on the 20th of each month commencing from October, 1953. It was for payment of the demands for the concerned assessment years. It has been affirmatively stated that the proceedings for recovery of the sum payable was commenced well within the period of one year from the last day of the financial year in which the demands were made by the Income Tax Officer. It has further been stated that the petitioner was allowed to pay the amount by monthly instalments, commencing from October, 1953, of Rs. 1,600 each. The petitioner has suppressed the fact that he was allowed to pay the amount by monthly instalments commencing from October, 1953. The assertions of the respondents have not been denied by the petitioner by way of any counter or reply. Under these circumstances, we are constrained to hold that the recovery proceedings were commenced well within the period of limitation prescribed u/s 46(7) of "the old Act". Accordingly, this contention also fails.

For the foregoing reasons, we hold that the petition has no merit and accordingly it is dismissed with costs which we assess at Rs. 300.

K.N. Saikta, J.

I agree.