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1965 Supreme(Ori) 69
HIGH COURT OF ORISSA
K. Ahmad, C. J. And R. K. Das, J.
SIBAPADA GHOSE MANDAL - Appellant
Versus
UNION OF INDIA - Respondent
O. J. C. 63 Of 1964
Decided On : AUGUST 14, 1965
Asok Das, D.MOHANTY, S.K.Kundu
The Income Tax dues for which requisitions were made by the Income-tax Officer under Section 46 (2) of the Income Tax Act were public demands payable to the Collector.
Headnote:
PUBLIC DEMANDS RECOVERY ACT - CERTIFICATE - CANCELLATION - JURISDICTION OF CERTIFICATE OFFICER - INCOME TAX DUES - PAYABLE TO COLLECTOR - CERTIFICATE TO BE FILED UNDER SECTION 4 - REVISION - POWER OF MEMBER, BOARD OF REVENUE.
Fact of the Case:
The petitioners, sons of late P. C. Ghose Mandal, were assessed to income tax by the Income-tax Officer, Baripada for six different periods. The taxes assessed were not paid in full. Therefore, as provided by Section 46 (2) of the Indian Income-tax Act, 1922 (Act XI of 1922), requisitions for the recovery of those taxes were sent to the Collector Balasore by the Income-tax officer. These requisitions gave rise to proceedings under the Public Demands recovery Act wherein both F. C. Mandal and his sons were impleaded as judgment-debtors. Objections were raised in all those proceedings by the petitioner claiming that the family being governed by the Dayabhag School of Hindu Law, they were not liable for the income tax dues assessed against their father. The Certificate Officer, on hearing the parties exempted petitioners from liability for these income tax dues, by his order dated 27-1-1954. However, F. C. Mandal died on 10-7-55. This led to fresh notice being issued against the petitioners in all these proceedings on 26-1255 and on 26-1-1957. But in due course these fresh proceedings were also dismissed against them by the Certificate Officer on the ground that the order already passed on 27-1-1954 could not be reopened by him. Against that order the Income-tax authorities went up in appeal before the Additional District magistrate and Collector of Balasore, on 23-5-1957. The Additional District magistrate and Collector, on hearing the parties allowed these appeals by his order dated 10-3-1958 and recommended all these cases to the Certificate Officer for their disposal in accordance with law. Thus they again came back to the Certificate officer and this time while they were pending for disposal, they were on 6-9-1960 struck off by his order under Section 53 (2) of the Bihar and Orissa Public demands Recovery Act, 1914, (Act IV of 1914 ). The said order which the certificate Officer passed on that day was in these words: "dr. present R. C. has been informed by R. P. A. D. C. P. on behalf of R. C. nor R. C. himself present though informed. The case is lingering since last 10 years and a number of adjournments have been granted to R. C. on some pretext or other, entailing unnecessary harassment to the parties. The case is, therefore, struck off under Section 53 (2) of the P. D. R. Act. " Against this order there were again appeals taken to the Additional District Magistrate and Collector, Balasore. In his opinion there was no substance in these appeals; accordingly the Additional District Magistrate and Collector dismissed all of them by a common order dated 2-11-1962. It was this order of the Additional district Magistrate and Collector which led to the aforesaid six revision petitions before the Member, Board of Revenue where they were numbered as Revision cases Nos. 124, 125, 127, 128 and 129 of 1962-63.
Finding of the Court:
The Member, Board of Revenue, disagreeing with the order of the Certificate officer and the Additional District Magistrate and Collector, allowed these revision petitions and passed the aforesaid order on 11-10-1963.
Issues: 1. Whether the certificates in these cases were filed by the Certificate Officer under section 4 of the Public Demands Recovery Act or under Sections 5 and 6? 2. Whether the Income Tax dues for which requisitions were made by the Income-tax Officer under Section 46 (2) of the Income Tax Act were public demands payable to the Collector or not? 3. Whether the Member, Board of Revenue had jurisdiction under Section 62 of the Bihar and Orissa public Demands Recovery Act to exercise power of revision against the appellate order of the Additional District Collector?
Ratio Decidendi: 1. The certificates in these cases were filed by the Certificate Officer under Section 4 of the Public Demands Recovery Act and not under Sections 5 and 6. 2. The Income Tax dues for which requisitions were made by the Income-tax Officer under Section 46 (2) of the Income Tax Act were public demands payable to the Collector. 3. The Member, Board of Revenue had jurisdiction under Section 62 of the Bihar and Orissa public Demands Recovery Act to exercise power of revision against the appellate order of the Additional District Collector.
Final Decision: The applications were dismissed with costs.
AHMAD, C. J.
( 1 ) THE parties to all these six applications are the same; they arise out of substantially the same facts, and involve common Questions of law; therefore, they have all been heard together and are disposed of by this common judgment.
( 2 ) THE rule in all these case was obtained by the common petitioners under Article 226 of the Constitution of India against a common order dated 11-10-1963 passed by the Member, Board of Revenue in exercise of his revisional jurisdiction under section 62 of the Bihar and Orissa Public Demands Recovery Act, 1914 in proceedings arising out of 6 Public Demands Recovery cases numbered as certificate Misc. Cases Nos. 1207 of 1950-51, 12 of 1951-52, 3991 of 1951-52, 154 of 1953-54, 2204 of 1952-53 and 175 of 1963-64. By that order, the Member, board of Revenue held that-
"certificate under Section 46 (2) was sent to the Collector. From then it becomes a due payable to the Collector. As far as the certificate officer is concerned, he treats it as an arrear of land revenue payable to the collector. Therefore the certificate is under Section 4 and not under section 6. Therefore the provisions of Section 53 (2) are not applicable. " further he also added : "the order of the Certificate Officer and the Additional District Magistrate is not justified and should be reversed. Revision allowed. The order of the certificate officer dated 6-9-1960 is set aside and the case is remanded for disposal according to law. "
( 3 ) THE petitioners in all these cases are the sons of one late P. C. Ghose Mandal of balasore. It is said that the late P. C. Ghose Mandal was assessed to income-tax by the Income-tax Officer, Baripada for six different periods and the taxes assessed were not paid in full. Therefore, as provided by Section 46 (2) of the indian Income-tax Act, 1922 (Act XI of 1922), requisitions for the recovery of those taxes were, it is said, sent to the Collector Balasore by the Income-tax officer, who has been impleaded here as the opposite party No. 1. These different requisitions gave rise to the proceedings aforesaid under the Public Demands recovery Act wherein both F. C. Mandal and his sons were impleaded as judgment-debtors. Objections were raised in all those proceedings by the petitioner claming that the family being governed by the Dayabhag School of hindu Law, they were not liable for the income tax dues assessed against their father. The Certificate Officer, on hearing the parties exempted petitioners from liability for these income tax dues, by his order dated 27-1-1954. It however so happened that immediately thereafter F. C. Mandal died on 10-7-55. This led to fresh notice being issued against the petitioners in all these proceedings on 26-1255 and on 26-1-1957. But in due course these fresh proceedings were also dismissed against them by the Certificate Officer on the ground that the order already passed on 27-1-1954 could not be reopened by him. Against that order the Income-tax authorities went up in appeal before the Additional District magistrate and Collector of Balasore, on 23-5-1957. The Additional District magistrate and Collector, on hearing the parties allowed these appeals by his order dated 10-3-1958 and recommended all these cases to the Certificate Officer for their disposal in accordance with law. Thus they again came back to the Certificate officer and this time while they were pending for disposal, they were on 6-9-1960 struck off by his order under Section 53 (2) of the Bihar and Orissa Public demands Recovery Act, 1914, (Act IV of 1914 ). The said order which the certificate Officer passed on that day was in these words:
"dr. present R. C. has been informed by R. P. A. D. C. P. on behalf of R. C. nor R. C. himself present though informed. The case is lingering since last 10 years and a number of adjournments have been granted to R. C. on some pretext or other, entailing unnecessary harassment to the parties. The case is, therefore, struck off under Section 53
