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HIGH COURT OF CALCUTTA
AMARESH ROY, A. K. DE
UNION OF INDIA - Appellant
Versus
B. C. NAWN - Respondent
C. L. R. L. 210 Of 1970
Decided On : APRIL 02, 1971
INCOME TAX - Recoverability of tax assessed - Whether tax assessed is recoverable during the pendency of an appeal - Whether Section 265 of the Income-tax Act, 1961, bars an objection by the assessee as to the recoverability of the assessed tax before the Tax Recovery Officer - Whether the maxim expressio unius est exclusio alterius is applicable in interpreting Section 265.
Fact of the Case:
The assessee was assessed to income-tax under Section 144 of the Income-tax Act, 1961. The Income-tax Officer served a notice of demand under Section 156 of the Act upon the assessee. The assessee did not pay the assessed tax within the period specified in Section 220(1). He preferred an appeal against the order of assessment before the Appellate Assistant Commissioner under Section 246 and later before the Income-tax Appellate Tribunal under Section 253. The assessee filed a petition of objection under Rule 9 of Schedule II of the Act before the Tax Recovery Officer praying for postponement of further proceeding in the certificate case till the disposal of his appeal before the Income-tax Appellate Tribunal and alternatively for withdrawal of the notice issued by him for settling the proclamation of sale of his immovable properties. The Tax Recovery Officer rejected the petition. The assessee appealed to the Revenue Divisional Commissioner under rule 86 of Schedule II of the Act. The Revenue Divisional Commissioner allowed the appeal holding that the tax was not recoverable by summary certificate procedure during the pendency of the appeal by the assessee before the Income-tax Appellate Tribunal.
Finding of the Court:
The court held that the tax assessed was recoverable during the pendency of the appeal. The court held that Section 265 of the Income-tax Act, 1961, does not bar an objection by the assessee as to the recoverability of the assessed tax before the Tax Recovery Officer. The court held that the maxim expressio unius est exclusio alterius is not applicable in interpreting Section 265.
Issues: 1. Whether tax assessed is recoverable during the pendency of an appeal? 2. Whether Section 265 of the Income-tax Act, 1961, bars an objection by the assessee as to the recoverability of the assessed tax before the Tax Recovery Officer? 3. Whether the maxim expressio unius est exclusio alterius is applicable in interpreting Section 265?
Ratio Decidendi: 1. The court held that the tax assessed was recoverable during the pendency of the appeal. The court held that the provisions in the Act show that the assessment remains final even during the pendency of appeal against it. The court held that Section 220(6) of the Act empowers the Income-tax Officer to treat the assessee as not being in default, if the assessee files an appeal before the Appellate Assistant Commissioner under Section 246. The court held that the provisions in the Act go to show that the assessment remains final even during the pendency of appeal against it. 2. The court held that Section 265 of the Income-tax Act, 1961, does not bar an objection by the assessee as to the recoverability of the assessed tax before the Tax Recovery Officer. The court held that Section 224 of the Act bars an objection by the assessee as to the correctness of the assessment or for the Tax Recovery Officer to entertain any objection to the certificate on any ground. The court held that this bars an objection by the assessee as to the recoverability of the assessed tax before the Tax Recovery Officer. 3. The court held that the maxim expressio unius est exclusio alterius is not applicable in interpreting Section 265. The court held that the maxim is not of universal application. The court held that the maxim does not apply to matters "where it clearly appears that something was expressly mentioned for another reason or merely because of caution".
Final Decision: The court made the rule absolute. The order of the Revenue Divisional Commissioner was set aside and that of the Tax Recovery Officer on the opposite party's petition dated the 9th July, 1969, was restored.
( 1 ) THIS application by the Union of India under Article 227 of the Constitution of India is directed against an order of the Revenue Divisional Commissioner reversing the order of the Tax Recovery Officer in his Certificate Case No. 659-I. T. (A)/68-69. The opposite party, B. C. Nawn and Bros. (P.) Ltd. , was assessed to income-tax under Section 144 of the Income-tax Act, 1961 (to be hereafter mentioned as "the Act" ). The Income-tax Officer, who assessed the tax, served a notice of demand under Section 156 of the Act upon the opposite-party-assessee. The assessee did not pay the assessed tax within the period specified in Section 220 (1 ). He preferred an appeal against the order of assessment before the Appellate Assistant Commissioner under Section 246 and later before the Income-tax Appellate Tribunal under Section 253. On the prayer of the assessee, the Income-tax Officer allowed him, under Section 220 (3), to make an initial payment towards the assessed tax and to pay the balance in a number of instalments There was default by him in the matter of compliance, with that order. The Income-tax Officer then took steps for attachment and sale of the assessee's immovable properties. Thereupon, the assessee filed a petition of objection under Rule 9 of Schedule II of the Act before the Tax Recovery Officer praying for postponement of further proceeding in the certificate case till the disposal of his appeal before the Income-tax Appellate Tribunal and alternatively for withdrawal of the notice issued by him for settling the proclamation of sale of his immovable properties. This petition was opposed by the Union of India and was rejected by the Tax Recovery Officer by his order dated July 11, 1969. Against that order, the assessee filed an appeal before the Revenue Divisional Commissioner under rule 86 of Schedule II of the Act. The Revenue Divisional Commissioner allowed the appeal by his order dated October 14, 1969, holding that the tax was not recoverable by summary certificate procedure during the pendency of the appeal by the assessee before the Income-tax Appellate Tribunal. It is this order which is challenged in this application as being made in excess of his jurisdiction.
( 2 ) WHEN income-tax is assessed, as in the case under Section 144, the sum determined becomes payable by the assessee. After a tax is so determined, the Income-tax Officer serves on the assessee a notice of demand under Section 156. That obliges the assessee to pay the said sum within a specified period. If the assessee does not make payment within the period in Sub-section (1) or (3) of Section 220, he becomes a defaulter. When the assessee becomes a defaulter, the Income-tax Officer may forward to the Tax Recovery Officer a certificate specifying the amount for recovery by him under Section 222. The Tax Recovery Officer, upon receipt of such certificate, proceeds to recover the sum. These provisions show that a tax, once assessed and determined as payable, becomes recoverable if the assessee be a defaulter. The recovery of tax by the Tax Recovery Officer can only be halted either by stay of the certificate proceeding under-orders of the proper authorities or by cancellation or withdrawal of it. "tax" can be said to be irrecoverable only when there is no assessment or when the assessee is not a defaulter. In the instant case, the tax has been assessed and determined as payable under Section 144 and the assessee is a defaulter, not having paid the sum within the specified time after receipt of notice of demand under Section 156. It was contended before the Tax Recovery Officer by the assessee in his petition under rule 9 of Schedule II of the Income-tax Act, that the assessment, which is the subject-matter of the certificate, having been disputed by filing an appeal, had lost its finality and had become irrecoverable. The Tax Recovery Officer rejected the contention. There is no provision in the Act in support of the contention that an a
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