1955 (5) TMI 20 - HC - Income Tax

Court upholds Certificate Officer's appointment, no fresh demand needed, Section 51 valid, simultaneous proceedings okay.

Laduram Taparia Versus D.K. Ghosh and Ors.

Laduram Taparia Versus D.K. Ghosh and Ors. - [1956] 29 ITR 103 (Cal) Issues Involved:1. Validity of the appointment of the Certificate Officer.2. Necessity of a fresh demand notice under Section 29, Income Tax Act after appellate reduction.3. Constitutionality of Section 51 of the Public Demands Recovery (PDR) Act under Article 14.4. Competence of simultaneous proceedings under Section 46(5A), Income Tax Act.Issue-wise Detailed Analysis:1. Validity of the Appointment of the Certificate Officer:The petitioner challenged the appointment of respondent 1, D.K. Ghosh, as a Certificate Officer, arguing that he was not validly appointed. The court examined Section 3(3) of the PDR Act, which defines a 'Certificate Officer' and Section 10(2) of the Criminal Procedure Code, which allows the State Government to appoint a Magistrate of the First Class as an Additional District Magistrate. The court found that although Ghosh was a retired member of the Indian Administrative Service and not a Magistrate of the First Class at the time of his initial appointment, subsequent notifications on 13-2-1954 vested him with the necessary powers. Therefore, the court held that his appointment was valid from 13-2-1954, and any actions taken before that date were invalid but did not affect subsequent proceedings.2. Necessity of a Fresh Demand Notice under Section 29, Income Tax Act:The petitioner argued that a fresh demand notice under Section 29 was required after the Appellate Tribunal reduced the tax amount. The court referred to Section 29 and Section 45 of the Income Tax Act, concluding that a fresh demand notice is not necessary when the tax amount is reduced by an appellate authority. The court cited the Allahabad High Court's decision in Municipal Board, Agra v. Commissioner of Income Tax, which held that a fresh notice is required only when the assessment is enhanced. The court found that the original notice, as modified by the appellate order, suffices to inform the assessee of the revised amount due.3. Constitutionality of Section 51 of the PDR Act under Article 14:The petitioner contended that Section 51 of the PDR Act was discriminatory and violated Article 14 of the Constitution. The court examined the appeal provisions under Section 51 and Section 53 of the PDR Act, concluding that the differentiation in appeal rights based on whether the order was made by a Collector or a subordinate officer did not constitute discrimination. The court reasoned that the ultimate authority for revision, the Board of Revenue, remained accessible to all parties, thus ensuring fairness.4. Competence of Simultaneous Proceedings under Section 46(5A), Income Tax Act:The petitioner argued that simultaneous proceedings under Section 46(5A) and certificate proceedings were incompetent. The court referred to the case of Union of India v. Elbridge Watson, which held that the issuance of a notice under Section 46(5A) was an administrative act. The court found that the Income Tax Officer retains administrative seisin over the matter even after initiating certificate proceedings. The court held that the provisions of Section 46(5A) are broad and allow the Income Tax Officer to require payment from persons owing money to the assessee, regardless of ongoing certificate proceedings.Conclusion:The court dismissed the petition, ruling that all points raised by the petitioner failed. The rule was discharged, and all interim orders were vacated, with no order as to costs.