AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
1975 (9) TMI 2
X X X X Extracts X X X X
X X X X Extracts X X X X
....61 (hereinafter referred to as " the 1961 Act "). He prohibited the appellants from transferring or otherwise dealing with properties in their possession on the basis of 22 certificates covering a total amount of Rs. 50,42,970.34. Some of the certificates were issued under section 46, sub-section (2), of the Indian Income-tax Act of 1922 (hereinafter referred to as " the 1922 Act "), and others under, section 221 of the 1961 Act. The appellants, claiming to be in possession of immovable properties gifted in 1947, 1953, 1954 and 1956, by T. K. Musaliar objected to the attachment of their properties on the ground that the income-tax dues against the deceased could not be recovered by attachment or sale of properties belonging to the appellants. The appellants question the jurisdiction of the Tax Recovery Officer to proceed with the recovery against their properties. The appellants also contended that taxes having become due under the Travancore Act and the 1922 Act from the deceased, recovery proceedings by their attachment under the 1961 Act were not legally competent. Furthermore, they objected that all out of 22 certificates having been issued after the death of T. K. Musaliar, ex....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nder rule 48 of the Second Schedule, the Recovery Officer had authority to proceed under the Travancore Act to recover dues under that Act by recourse to the provisions of the Travancore-Cochin Revenue Recovery Act 7 of 1951. He relied upon the well established proposition that where the power to proceed is actually there, the mere reference to a wrong section for authority to act, will not vitiate the action taken. (See L. Hazari Mal Kuthiala v. Income-tax Officer, Special Circle, Ambala Cantt., Income-tax Officer, Kolar Circle v. Seghu Buchiah Setty and P. M. Bharucha & Co. v. G. S. Venkatesan, Income-tax Officer, Circle I, Ward A, Bhavanagar). The learned judge also took the view that the income-tax dues covered by the above-mentioned settlement were realized by virtue of an order made under section 3 of the Opium & Revenue Laws (Extension of Application) Act, 1950 (33 of 1950), and the last mentioned enactment having authorised the income-tax authorities to apply the provisions not merely of the Travancore Act but of " any other law ", the recovery proceedings for those years, even under the provisions of the 1961 Act, were unassailable. The learned judge also thought that, as ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....The grievance of the appellants, however, is that the Tax Recovery Officer had no jurisdiction whatsoever to start tax recovery proceedings against them. They have, therefore, asked for writs of prohibition. The existence of an alternative remedy is not generally a bar to the issuance of such a writ or order. But, in order to substantiate a right to obtain a writ of prohibition from a High Court or from this court, an applicant has to demonstrate total absence of jurisdiction to proceed on the part of the officer or authority complained against. It is not enough if a wrong section or provision of law is cited in a notice or order if the power to proceed is actually there under another provision. One of the identically similar notices to which objection was taken by the appellants may be reproduced here. It runs as follows: " Form No. ITCP 16. (See rule 48 of the Second Schedule to the Income-tax Act, 1961). ORDER of Attachment of Immovable property. Office of the Tax Recovery Officer, Collector, Quilon. Dated 10th May, 1958. To Smt. Isha Beevi on behalf of minors 1. Umaiba Beevi, 2. Mymoon Beevi, 3. Mariam Beevi and 4. Safia Beevi, Kantanchaalil Veedu, Ka....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted." The 1922 Act was repealed by the 1961 Act. Hence, it held that section 2(44) of the 1961 Act read with section 221 of that Act, were sufficient to enable the Additional Personal Assistant to the Collector to proceed as a Tax Recovery Officer. Section 13, sub-section (1) of the Finance Act, 1950, laid down : " 13. (1) If immediately before the last day of April, 1950, there is in force in any Part B State other than Jammu and Kashmir or in Manipur, Tripura or Vindhya Pradesh or in the merged territory of Cooch-Behar any law relating to income-tax or super-tax or tax on profits of business, that law shall cease to have effect except for the purposes of the levy, assessment and collection of income-tax and super-tax in respect of any period not included in the previous year for the purposes of assessment under the Indian Income-tax Act, 1922 (XI of 1922), for ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e assessee's immovable property ; (c) arrest of the assessee and his detention in prison ; (d) appointing a receiver for the management of the assessee's movable and immovable properties." Hence, even if the " Peishkar " was the competent officer under the Travancore Income-tax Act, the duties of the Peishkar as the Recovery Officer, would, by operation of the above-mentioned provisions of law, automatically devolve upon the Collector or an Additional Collector or upon such officer as may be empowered by the State Government by a special or general notification in the Official Gazette " to effect recovery of land revenue or other public demand " under any law relating to land revenue or other public demand. The appellants, not having raised the question at any earlier stage that the Additional Personal Assistant to the Collector was not an officer so authorised, cannot do so in appeal to this court. However, we leave it open to them to take such an objection, which really raises a question of fact as to whether the required notification was or was not made, before the Tax Recovery Officer himself. If such an objection had been taken there or even in the High Court, the rel....