TaxTMI 
TaxTMI 
1965 (8) TMI 9
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....exhibits P-2 to P-4. The assessment for the year 1961-62 was made on October 11, 1961, and for the year 1962-63 (I am informed), on September 28, 1963. For the entire amount of tax due for the years 1960-61, 1961-62 and 1962-63, together with surcharge and penalty, the Income-tax Officer issued a certificate to the Collector for proceeding under the Revenue Recovery Act. I have been informed by the learned Government Pleader, by reference to the files, that the first of such certificates was issued on March 21, 1962, in respect of the amounts due for the years 1960-61 and 1961-62. After the assessment for 1962-63 was completed, a fresh certificate was issued. In pursuance of the same, the petitioner states that the third respondent collected certain amounts under threat of distress warrant No. PR 1/308/64 and has further threatened to attach and sell the properties of the petitioner. In the additional affidavit filed by the petitioner, it is stated that the third respondent received the revenue recovery order on July 22, 1964, and attached the petitioner's property on August 3, 1964. The petitioner's case is that by reason of section 41(4) of the Kerala Agricultural Income-tax A....
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....er section 41(3) of the Act, and if, as the petitioner's counsel now contends, the issuance of the certificate would not amount to commencement of the proceedings contemplated by section 41(4) of the Act, and is not within the purview of its ban, I fail to see why a quashing of the certificate is prayed for. On his own case, the petitioner ought to have prayed for quashing the proceedings for attachment and sale and there is no prayer for the same. That apart, I am content to deal with the petitioner's arguments on the merits. The argument that the commencement of the proceedings referred to in clause (4) of section 41 of the Act must be related to proceedings of the Collector for revenue recovery on receipt of the certificate from the Agricultural Income-tax Officer referred to in clause (3), and cannot cover the issuance of the certificate itself, though attractive in the first blush, seems, on analysis, difficult to accept. Section 46, clause (7), of the Indian Income-tax Act, 1922, which embodied an analogous provision, in so far as it is material, ran as follows : (7) Save in accordance with the provisions of sub-section (1) of section 42, or of the proviso to section 45....
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....ficate, initiating and putting into force collection of the arrears as arrears of land revenue under and in accordance with the appropriate provisions of the U.P. Land Revenue Act (III of 1901). Surely, such last mentioned action on the part of the income-tax authorities would be the adoption of another legal proceeding for the collection of the arrears as opposed to the institution of a suit. The proviso to section 46(2) empowers the Collector, if he so chooses, to exercise all the powers which a civil court may exercise in respect of the attachment and sale of debts due to a judgment-debtor. If the Income-tax Officer will be taking a 'legal proceeding' when he moves the Collector--as we think he must be held to do--to realise the tax by attachment and sale of debts due to the assessee, it can make no difference in principle that the Collector is asked to exercise his summary powers under the land revenue law." (Underlining mine) As I read the above observations, the court endorsed the position that the Income-tax Officer will be taking a legal proceeding when he moves the Collector to realise the tax by attachment and sale of debts due to the assessee. In Arunadevi Jajodia ....
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....rrying into effect a legal right'. The meaning of the word is wide enough to include the entire procedure prescribed by the Act for realising the amount. The fact that the Collector proceeds to recover the amount from the assessee is not inconsistent with the circumstance that the proceedings for recovery start earlier. I therefore hold that the issue by the Income-tax Officer of a certificate is the first step of the proceedings for the recovery of the arrears. So construed, it follows that the proceedings started within the time prescribed by section 46 () of the Act". I am in respectful agreement with the above reasoning. The principle of the above decision was followed in C. M. George v. Income-tax Officer, Madras. In Kashiram Agarwalla v. Collector of 24-Parganas, Chief Justice Das Gupta of the Calcutta High Court (as he then was) had no difficulty in holding, in the light of the Explanation to section 46(7) added by the amending Act of 1953, that : "......Forwarding of the certificate by the Income-tax Officer is 'some action' taken to recover the dues within the meaning of the Explanation and consequently the proceedings for recovery commenced as soon as the certifi....