N C MOOKERJEE AND CO Vs. UNION OF INDIA
LAWS(CAL)-1963-2-16
HIGH COURT OF CALCUTTA
Decided on February 14,1963

N.C.MOOKERJEE AND CO. Appellant
VERSUS
UNION OF INDIA Respondents




JUDGEMENT

Bose, C.J. - (1.)This is an application for a certificate under Article 133(1) (c) of the Constitution of India in respect of a decision of a Division Bench of this Court dated the 26th September 1962 which affirmed the order of the Additional Member, Board of Revenue, dated the 21st April, 1960 in certain Certificate Proceedings under the Bengal public Demands Recovery Act initiated against the petitioner.
(2.)The petitioner is a registered partnership firm consisting of four partners. On 25th August, 1954 the petitioner firm was assessed to excess profits tax in respect of its accounting year ending 31st March, 1942. A notice of demand under Section 29 of the Indian income-tax Act read with Section 21 of the Excess Profits Tax Act, 1940 and dated the 3rd September, 1954 was addressed to the petitioner firm and the latter was directed to pay a sum of Rs. 11,192/- as excess profits tax by the 25th September, 1954. The petitioner firm did not pay according to the demand and the Income-tax Officer N. D. District II, Calcutta, on 12th March, 1956 forwarded a certificate to the Certificate Officer and Additional District Magistrate 24 Parganas, for recovery of the tax from the petitioner firm. On 29th March, 1956, a certificate for the said firm was signed and filed by the then Certificate Officer under Section 6 of the Bengal Public Demands Recovery Act, 1913 and notice under Section 7 of the Act was issued and served upon the petitioner. On 23rd May, 195S the petitioner filed objection under Section 9 and at the hearing of the Certificate Case, the Certificate Officer upheld this objection and on 20th December, 1956 a fresh notice under Sec, 7 was served upon the petitioner firm. On 27th January, 1957 the petitioner firm filed again an objection under Section 9 denying the petitioner firm's liability and challenging the validity and legality of the certificate and proceeding thereunder. The petitioner also pleaded payment of various amounts and asserted that the firm was entitled to refund of all moneys upon adjustment. The petitioner firm also filed a supplementary objection on 4th February, 1957. The Certificate Officer, however, rejected this objection. Against the said order the petitioner preferred an appeal under Section 51 of the Bengal Public Demands Recovery Act before the learned commissioner, Presidency Division. But on 18th April, 1958 the Commissioner dismissed the appeal summarily. Against tnat judgment the petitioner on 26th May, 1958 tiled an application under Section 53 of the Act before the learned Additional Member, Board of Revenue, for revision. This application was heard analogously with petitioner firm's three other applications in three other Certificate Cases initiated against the petitioner. After hearing these applications the learned Additional Member, Board of Revenue, passed orders rejecting the revision petitions on 21st April, 1960. As against those orders, the petitioner moved this Court and obtained Rules in respect of the said four Certificate cases. These Rules came up for hearing before a Division Bench of this Court consisting of Bachawat J. and Chatterjee J. who by an order dated the 26th September, 1962 discharged the said Rules. It is against this decision ot the Division Bench that the petitioner now intends to prefer an appeal to the Supreme Court.
(3.)Before the learned Judges the principal contention that was raised was that the certificates were not in accordance with the provisions of the Bengal Public Demanas Recovery Act, and the rules made thereunder and so were invalid and the Bengal Public Demands Recovery (Validation of Certificates and Notices) Act being West Bengal Act XI of 1961 was ultra vires the Constitution and as such was ineffective for the purpose of validating the certificates in question. It was contended that the validating Act was an Act relating to subject which was covered by Entry 43 in the Concurrent List (List III) in 7th Schedule of the Constitution or the legislation in question was one which was not covered by any item either in the Concurrent or State List and as such one which was within the exclusive power of the Parliament to make under Article 248 of the Constitution read with Entry 97 in List I of the 7th Schedule of the Constitution, it was further contended that the legislation being one relating to item 43 of List III it required the previous assent of the President under the provisions of Article 254 cl. (2) and no sucn assent having been obtained the legislation was invalid. The learned Judges of the Division Bench in overruling tne contention of the petitioner observed that the West Bengal Act XI of 19S1 was a piece of legislation dealing with certificates and notices issued under the Bengal Public Demands Recovery Act, 1913 and the Bengal Public Demands Recovery Act is plainly not a law with respect to Entry 43 in the Concurrent List inasmuch as it is not a law with respect to recovery in the State of West Bengal of claims regarding public demands arising outside that State and as an instance of law with respect to Entry 43 of List Ml the learned Judges referred to the Revenue Recovery Act, 1890 which is Central Act 1 of 1890. The Division Bench held that the Bengal Public Demands Recovery Ad, 1913 is a law with respect to the administration of justice, constitution and organisation of Revenue Courts, procedure of Revenue Courts and with respect to land reveune, including the collection of land revenue and as such was wholly covered by Entries Nos. 3 and 45 of the State List (List II of 7th Schedule), That Act was not a law with respect to any of the matters of the Union List or of the Concurrent List and consequently it could not be pronounced as invalid on the ground that the assent ot the President under Article 254(2) of the Constitution had not been obtained. In reaching this conclusion the learned Judges held incidentally that the Certificate Officer and the Member, Board of Revenue in so far as their functions extended to the adjudication of the rights of the parties were "Revenue Courts within the meaning of Entry 3 of the State List." The learned Judges also noticed the conflict of authorities on the point as to whether a Certificate Officer is a Court or not. The learned Judges referred to the case of Dwarkanath v. Srigobinda, AIR 1929 Cal 130 where a Division Bench of this Court held tnat a Certificate Officer is not a Court. Reference was made by the learned Judges also to the decisions of this Court reported in AIR 1940 Cal 215, Joy Durga Dassi v. Sourish Chandra Roy, and , Abanindra v. A. K. Biswas which took a contrary view and held that a Certificate Officer is a Court. Reference was also made to two decisions of the supreme Court , Bharat Bank Ltd. v. Employees of Bharat Bank Ltd. and (S), Virindar Kumar v. State of Punjab, In this view of the matter the learned Judges of the Division Bench ultimately came to the conclusion that the Bengal public Demands Recovery (Validation of Certificates and Notices Act XI of 1961 is a valid piece of legislation and assent of the President under Article 254(2) of the Constitution was not necessary for its validity. The learned Judges also examined the other points raised as to the irregularities and defects in the form of the certificates and noticed the conflict of authority on this point; but held that in view of the validating Act which had the effect of curing all these irregularities and defects, it was not necessary to refer such question for the decision of a larger Bench.


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.