1978 (2) TMI 88 - HC - Income Tax

Court Upholds Decision on Penalty Recovery Process Under Income-tax Act, 1961

Union Saw Mills And Others Versus Raj Kumari Narendra Kumari

Union Saw Mills And Others Versus Raj Kumari Narendra Kumari - [1978] 113 ITR 299 Issues:1. Whether a certificate can be issued for the recovery of penalty imposed for failure to pay advance tax under the Income-tax Act, 1961.Detailed Analysis:The judgment involves the issue of whether a certificate can be issued for the recovery of a penalty imposed on an assessee for failure to pay advance tax under the Income-tax Act, 1961. The Additional District Magistrate canceled the certificate issued by the Income-tax Officer for the recovery of the penalty imposed on the assessee. The crux of the matter is whether penalty under section 221 of the Act can be recovered through a certificate under section 222 of the Act. The Additional District Magistrate opined that no penalty can be imposed under section 221 for failure to pay advance tax, thus questioning the validity of the recovery certificate. This led to the reference of the case to the Division Bench by C.N. Laik J. due to the intricate legal questions involved.The judgment delves into the provisions of Chapter XVII of the Income-tax Act, which includes sections related to the collection and recovery of tax. It highlights the distinction between advance tax payment under Part C and collection and recovery under Part D of the Act. Section 221 of the Act empowers the Income-tax Officer to levy a penalty on an assessee in default of tax payment, including advance tax. The provision also mandates a reasonable opportunity for the assessee to be heard before levying any penalty. Moreover, section 222 allows the issuance of a certificate for recovery when an assessee is in default or deemed to be in default.The judgment discusses the interpretation of advance tax as tax under section 221 based on previous legal precedents. It refers to a case where the Gujarat High Court held that advance tax is considered tax for the application of penalty provisions. Despite acknowledging advance tax as tax for penalty purposes, the judgment agrees with the Additional District Magistrate's decision to cancel the recovery certificate but on different grounds. The court emphasizes that the penalty can be recovered only after a final order is passed, and the penalty amount may be refunded if the tax liability is wholly reduced post-assessment.The judgment draws an analogy between certificate proceedings and decree execution, stating that the certificate can only be executed after a final order under section 221(2) is passed and the penalty order is not canceled. It emphasizes the need for finality in penalty orders before execution through a recovery certificate. The court also addresses the appellant's reliance on section 229 of the Act for the recovery of interest, fine, or penalty, emphasizing that recovery must be based on orders that have attained finality. Ultimately, the court affirms the Additional District Magistrate's decision to set aside the certificate issuance due to the lack of finality in the penalty order, leading to the discharge of the rule with no costs awarded.In conclusion, the judgment provides a comprehensive analysis of the legal issues surrounding the recovery of penalties for failure to pay advance tax under the Income-tax Act, emphasizing the importance of finality in penalty orders before execution through a recovery certificate.