1966 (2) TMI 9 - HC - Income Tax

Petition under article 226 of the Constitution asking for a writ or an order in the nature of mandamus restraining the respondents from giving effect to the notices issued by the 1st Tax Recovery Officer under rule 73 of the Second Schedule to the Income-tax Act, 1961.

Summary

Issues Involved:
1. Constitutionality and applicability of Rule 73 of the Second Schedule to the Income-tax Act, 1961.
2. Jurisdiction of the Tax Recovery Officer under Rule 73.
3. Constructive res judicata in the context of successive writ petitions.
4. Liability of the karta of a Hindu undivided family under Rule 73.

Detailed Analysis:

1. Constitutionality and Applicability of Rule 73:
The petitioner challenged the constitutionality of Rule 73 of the Second Schedule to the Income-tax Act, 1961, which permits the arrest and detention of a defaulter in civil prison for non-payment of tax arrears. The petitioner argued that as the karta of a Hindu undivided family (HUF), he should not be personally liable for the tax arrears of the HUF. The court, however, did not address this issue in the present judgment due to the application of the doctrine of constructive res judicata.

2. Jurisdiction of the Tax Recovery Officer:
The petitioner contended that the Tax Recovery Officer lacked the jurisdiction to initiate proceedings under Rule 73. This issue was previously raised and decided against the petitioner in earlier proceedings, including an appeal to the Joint Collector and a writ petition (W.P. No. 1274 of 1965), which was subsequently dismissed by a Division Bench of the High Court in Writ Appeal No. 166 of 1965.

3. Constructive Res Judicata:
The central issue in the present judgment was whether the petition was barred by the principle of constructive res judicata. The court observed that the petitioner had already challenged the order of the Tax Recovery Officer in multiple forums, including an appeal to the Joint Collector and a writ petition. The court cited the Supreme Court's decision in Devilal Modi v. Sales Tax Officer, emphasizing that the doctrine of constructive res judicata prevents a party from raising new grounds in successive petitions based on the same cause of action. The court concluded that the present writ petition was a thinly veiled attempt to challenge the same order of committal to civil prison, which had already been upheld by the court in previous proceedings.

4. Liability of the Karta of a Hindu Undivided Family:
The petitioner argued that as the karta of an HUF, he should not be personally liable for the tax arrears of the HUF under Rule 73. The court did not address this issue in detail, as it was deemed unnecessary in light of the decision on constructive res judicata. Both parties agreed that this question could be left open if the court's decision on constructive res judicata was against the petitioner.

Conclusion:
The court dismissed the writ petition, holding that it was barred by the doctrine of constructive res judicata. The petitioner was not permitted to challenge the same order of committal to civil prison on a new ground that could have been raised in earlier proceedings. The court emphasized that allowing successive writ petitions on different grounds would be contrary to considerations of public policy and judicial finality. The petition was dismissed with costs, and the issue of the liability of the karta of an HUF under Rule 73 was left open.