M M MATHEW Vs. INCOME TAX OFFICER SECOND ADDL
HIGH COURT OF KERALA
M M MATHEW
Income Tax Officer Second Addl
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(1.) This is a petition under Art.226 of the Constitution by an assessee under the Income Tax Act. The petitioner who was a businessman at Kottayam had been assessed to income tax in particular sum for the year 1952-53. A penalty of Rs.18,000/- was also imposed upon him under S.28(1)(c) of the Income Tax Act for wilful manipulation of accounts and suppression of income. The tax assessed was cleared by the petitioner in instalments but because he defaulted to pay up the penalty amount a notice of demand under S.29 was issued and a further penalty of Rs.1800 was imposed against him. For the realisation of the two sums of Rs.18,000 and Rs.1,800, proceedings were initiated by the 1st respondent Income Tax Officer through the 3rd and 2nd respondents, District Collector and Tahsildar at Kottayam respectively under the Travancore-Cochin Revenue Recovery Act VII of 1951. According to the petitioner the Travancore Cochin Revenue Recovery Act is intended only for the recovery of State revenue and could not be utilised for the recovery of Central revenue e.g., income tax dues and the procedure adopted by the respondents for the realisation of the tax dues was accordingly illegal and without jurisdiction. Petitioner also canvasses the validity of the imposition under the Income Tax Act of the penalty for non payment of a penalty. The prayer is therefore made in the petition for issue of a writ of certiorari and or other appropriate writ to quash the proceedings concerned.
(2.) The petition is contested by the respondents. They seek to uphold both the imposition of further penalty of Rs. 1800 and the resort to the State Revenue Recovery Act for purpose of recovery.
(3.) The first question arising for consideration is whether there is any illegality in applying the State Revenue Recovery Act for purposes of realising income tax arrears arising within the State jurisdiction. Recovery of tax and penalties is provided for in Chap. 6 of the Income Tax Act. S.46 in that Chapter provides for the mode and time of recovery. Clause.(2) of that section says:
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.
S. 47 of the Act provides for recovery of penalty and interest in the same manner as arrears of tax. The expression Collector is not defined in the Income Tax Act. We have therefore to apply the definition given in S.3(ii) of the General Clauses Act, X of 1897 as follows:-
'Collector shall mean, in a Presidency-town, the Collector of Calcutta, Madras or Bombay, as the case may be, and elsewhere the chief officer in charge of the revenue administration of a District.
The word Collector is defined in the Travancore-Cochin Revenue Recovery Act also as the Chief Officer in charge of the revenue administration of the District.;
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