1967 (7) TMI 26 - HC - Income Tax

Recovery of tax arrear under Bengal Public Demands Recovery Act, 1913. Extention of appointment as additional district magistrate without fresh appointment as first class magistrate. Order of extention by the State Govt. followed by further order of the Governor -Whether order of Governor effective - Held, yes

Issues Involved:
1. Jurisdiction of the Tax Recovery Officer
2. Validity of the appointment of Shri Majumdar as Additional District Magistrate
3. Retrospective effect of appointments under statutory provisions
4. Continuation and extension of re-employment

Issue-wise Detailed Analysis:

1. Jurisdiction of the Tax Recovery Officer:
The petitioner, an assessee of income-tax, defaulted in payment of tax, leading to the issuance of a certificate by Shri N. M. Majumdar, purporting to act as a Tax Recovery Officer. The petitioner challenged the jurisdiction of Shri Majumdar on the grounds that he was not duly appointed as a Tax Recovery Officer and thus had no jurisdiction to issue the certificate. According to section 2(44) of the Income-tax Act, 1961, a Tax Recovery Officer must be a Collector, Additional Collector, or an officer empowered as a Certificate Officer under the Bengal Public Demands Recovery Act, 1913. The court had to determine whether Shri Majumdar was validly appointed as a Certificate Officer under the relevant statutory provisions.

2. Validity of the appointment of Shri Majumdar as Additional District Magistrate:
The appointment of Shri Majumdar as an Additional District Magistrate was questioned because his regular appointment had terminated by superannuation in May 1960, while the impugned certificate was issued in June 1963. The court examined the sequence of notifications and orders regarding his appointment. It was argued that the appointment as an Additional District Magistrate required him to be a Magistrate of the first class, as per section 10(2) of the Code of Criminal Procedure. The court found that although there were technical irregularities in the sequence of notifications, the substance of the matter indicated that Shri Majumdar was appointed as a Magistrate of the first class and then as an Additional District Magistrate.

3. Retrospective effect of appointments under statutory provisions:
The petitioner contended that the retrospective effect given to the appointment orders was invalid. The court referred to the Full Bench decision of the Punjab High Court in General S. Shivdev Singh v. State of Punjab, which stated that retrospective exercise of subordinate statutory power cannot be made without express provision. However, the court concluded that the letters issued by the Deputy Secretary, though not in proper form, constituted executive action by the State Government, thus validating the continuation of Shri Majumdar's appointment without a break.

4. Continuation and extension of re-employment:
The court examined the extensions of Shri Majumdar's re-employment. Despite procedural irregularities, the court found that the formal orders of the Governor, which extended his re-employment, were valid. The court held that once a person is appointed as an Additional District Magistrate, an extension of this appointment does not require a fresh conferment of the powers of a Magistrate of the first class. The court concluded that the extensions were valid, bringing Shri Majumdar to the relevant period of October 1963 as a validly appointed Additional District Magistrate and Tax Recovery Officer.

Conclusion:
The court discharged the rules, finding no grounds to invalidate the jurisdiction of Shri Majumdar. The petitioner's costs were to be borne by the State of West Bengal due to the administrative indifference in handling the appointment. The operation of the order was stayed for two months as requested by the petitioner's advocate.

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