MANOHAR PERSHAD, J. -
(1.) IN these two writ petitions, the point for consideration is whether the words "liability already incurred" occurring in S. 41 of the Andhra Pradesh General ST Act, 1957 include the liability to pay. The contention of Sri Choudary, the learned counsel for the petitioner, in W. P. No. 912 of 1961 is that the expression "liability already incurred" used in the above section does not include the liability to pay. My attention is drawn to a decision of the Supreme Court in the case of Chatturam Horilram Ltd. vs. CIT (1955) 27 ITR 709 (SC). On behalf of the order side, my attention is drawn to the case of Budhan Khan vs. State of Andhra Pradesh (1961) 12 STC 829 and a Bench decision of this Court in the case of Yellappa Nandyal vs. State of Andhra Pradesh (1960) 1 An WR 449 and it is contended that in the above cases this Court has not only considered the scope of S. 41 of the Andhra Pradesh General ST Act, 1957, but has held that the expression "liability already incurred" means liability to pay. The contention of Sri Choudary is that the Supreme Court decision was not brought to the notice of the learned judges and, if their attention was drawn to that, such an interpretation could not have been given to the words used "liability already incurred". It appears that the attention of this Court was not drawn to the Supreme Court decision. As certain observations in the Supreme Court decision appear to support the contention of the petitioner, I think it better if the writ petitions are decided by a Bench. I therefore refer these two petitions to a Bench. The petitioner seeks the issuance of a writ of mandamus directing the Agrl. IT and Commercial Tax Officer and the Collector of Warangal to forbear from taking further steps inclusive of the certificate proceedings of R. C. No. 1341/61/A2, served on the petitioner on July 4, 1961.
(2.) THE petitioner was assessed to agricultural income-tax under the provisions of the Hyderabad Agrl. IT Act (XII of 1950) for the asst. yrs. 1952-53, 1953-54, 1954-55 and 1957-58 in the sums of Rs. 1,108.35 nP., Rs. 1,108.35 nP., Rs. 1,138.38 nP. and Rs. 700 respectively. With respect to the asst. yr. 1957-58, a sum of Rs. 500 was paid and the balance outstanding for the assessment year is only Rs. 200. For the years 1952-53 and 1953-54, assessments were made on June 26, 1955, while for the latter two years the assessments were made on March 14, 1959, and November 30, 1959, respectively. As the tax was not paid by the petitioner, demand notices were issued for the first two years on October 3, 1955, and for the latter two years on August 20, 1958, and December 3, 1959.
Notwithstanding the notices, the assessee did not choose to pay the taxes except the sum of Rs. 500 as mentioned above. This led the concerned officer to issue a certificate of non-payment as required by S. 34(3) of the Hyderabad Agrl. IT Act (XII of 1950).
The District Collector, on receipt of this certificate, empowered the Tahsildar on February 20, 1961, to proceed with the recovery of these amounts under coercive processes. It is to prevent the Tahsildar from having recourse to S. 52 of the Madras Revenue Recovery Act (II of 1864) that this writ petition has been presented.
(3.) IN support of the petition, it was first faintly urged by the learned counsel for the petitioner that by the time the tax leviable and payable under the Hyderabad Agrl. IT Act was sought to be collected, this Act was repealed and there being no machinery for the collection of the amount it was not open to the authorities concerned to invoke the provisions of either S. 34 of that Act or the provisions of the Madras Revenue Recovery Act. We do not think that there is any substance in this argument having regard to S. 3 of the Hyderabad General Clauses Act, which, inter alia, provides :
"Unless a different intention appears--... (5) a repeal of any Act shall not affect,-- (a) the previous operation of any repealed enactment or anything established by that enactment or duly done; or (b) any right, privilege, obligation or liability accrued or incurred under any repealed enactment; or... (c) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy shall be instituted, continued or enforced, and any such penalty, forfeiture or punishment shall be so imposed as if the enactment had not been repealed."
It is manifest from this section that the repeal of the Hyderabad Agril. IT Act does not stand in the way of the Department pursuing the remedies available to it for the collection of the taxes due. By reason of the provision in the Hyderabad General Clauses Act (III of S. 1308F.), the right of the Department to collect the amount is saved and it is competent for the Collector to recover it under s. 52 of the Madras Revenue Recovery Act.;