1964 (9) TMI 2 - HC - Income Tax

Proceedings taken under the provisions of section 226 - relief claimed is for a declaration that the proceedings for recovery of tax are illegal and for the quashing of the certificate of recovery and the warrant of attachment - writ petition is dismissed

Issues Involved:
1. Proper presentation of the petition and compliance with affidavit requirements.
2. Compliance with Section 226(3)(vi) of the Income-tax Act, 1961.
3. Actions required by the Income-tax Officer upon a subsequent affidavit under Section 226(3)(vi).
4. Compliance with Rule 2 of Schedule II of the Income-tax Act and its effect.
5. Availability of an adequate alternate remedy.

Issue-wise Detailed Analysis:

1. Proper Presentation of the Petition and Compliance with Affidavit Requirements:
The court emphasized the necessity for affidavits to be based on personal knowledge as per Rule 1(ii) of Chapter 22 of the Rules of the court. The petition was dismissed on the ground that the affidavit was not sworn by the petitioner or his pairokar from personal knowledge. The court cited previous rulings (Saradish Ray v. Municipal Commissioners of Suri, Moinuddin v. Divisional Mechanical Engineer, N. R. Ry., and L. H. Sugar Factories & Oil Mills v. State of U. P.) to support this requirement. The court further referenced the Supreme Court's mandate in State of Bombay v. Purushottam Jog Naik, emphasizing the importance of affidavits conforming to Order XIX, Rule 3 of the Civil Procedure Code.

2. Compliance with Section 226(3)(vi) of the Income-tax Act, 1961:
Section 226(3)(vi) allows a person to object to a notice by a statement on oath that the sum demanded is not due. The court found that the petitioner did not comply with this provision within the time specified by the Income-tax Officer. The petitioner's denial on oath was not recorded by the Income-tax Officer, and the court noted that this objection was raised only after a significant delay, suggesting it was an afterthought.

3. Actions Required by the Income-tax Officer Upon a Subsequent Affidavit Under Section 226(3)(vi):
The court held that once a recovery certificate is issued under Section 226(3)(x), the Income-tax Officer is not obliged to stay his hands upon receiving a subsequent affidavit. The Income-tax Officer can only withdraw or correct the recovery certificate under Section 224(2) if satisfied that no debt was due. The court noted that the petitioner failed to comply with the provisions of Section 226(3) within the stipulated time, and the Income-tax Officer and Inspecting Assistant Commissioner were justified in their actions.

4. Compliance with Rule 2 of Schedule II of the Income-tax Act and Its Effect:
Rule 2 requires the Tax Recovery Officer to serve a notice on the defaulter, providing 15 days to pay the amount specified in the certificate. The court acknowledged that the petitioner had knowledge of the demand since January 20, 1964, and the actual attachment was made on April 22, 1964. Despite any procedural lapses, the petitioner had ample time to comply, and no prejudice was shown. The court declined to exercise its extraordinary writ jurisdiction on this basis.

5. Availability of an Adequate Alternate Remedy:
The court pointed out that an alternate remedy was available to the petitioner in the form of an appeal under Rule 86 of the Second Schedule. This appeal could address the issues related to the warrant of attachment and compliance with procedural rules, as it involved questions of fact.

Conclusion:
The writ petition was dismissed on the ground of improper affidavit presentation and lack of compliance with procedural requirements. The court found that the petitioner had adequate notice and an alternate remedy available, thus declining to exercise its writ jurisdiction. There was no order as to costs.

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