9911796707
TMI Blog1974 (9) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... t out below for the sake of brevity : " The petitioner, Pooran Mal, is a partner in a number of firms---some of them doing business in Bombay and some in Delhi. His permanent residence is 12-A, Kamla Nagar, Delhi. His business premises in Delhi are A-14/16, Jamuna Bhavan, Asaf Ali Road, New Delhi. It would appear that on an authorisation issued by the Director of Inspection, his residence and business premises in Delhi were searched on October 15/16, 1971. On the 15th his premises in Bombay were also searched and at that time it appears the petitioner was present in Bombay ...... The search in the business premises was made when a number of persons who usually worked there were present. Books of account, documents, some jewellery and a large amount of cash amounting to about Rs. 61,000 were seized. On october 16 there was a search in the branch offices of the Laxmi Commercial Bank and the Punjab National Bank. 84 silver bars were seized from Laxmi Commercial Bank and 30 silver bars were seized from the Punjab National Bank. (It appears that the bars themselves were not actually seized but were only attached under the provisions of sub-section (3) of section 132 of the Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Mal individually. The parties are also agreed that the property shall remain in the custody of the department and shall not be sold by them till fresh decision is taken by the department in the light of evidence to be supplied by the parties. Mr. B. S. Gupta, Income-tax Officer-cum-Assistant Director of Inspection (Intelligence), is personally present and he has undertaken to complete this case within two months, The writ is accordingly accepted and disposed of in terms of the submissions of the parties recorded above, but with no order as to costs. " In that writ petition the contention of the petitioners was that the silver bars were the property of the first respondent-firm and not that of Pooran Mal, the individual, who was only one of the partners. After the disposal of the writ petition the Income-tax Officer duly held a fresh enquiry and passed an order on June 5, 1972, holding that the silver bars belonged to Pooran Mal, the individual, and not to the first respondent-firm. Respondents Nos. 1 and 2 thereafter filed Civil Writ Petition No. 595 of 1972, out of which this appeal arises, contending that the silver bars belonged to the first respondent-firm and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents that even such a fresh order should be passed within ninety days. It would make the sub-sections (11) and (12) of section 132 ridiculous and useless. It cannot be said that what the notified authority could direct under section 132 could not be done by a court which exercises its powers under article 226 of the Constitution. To hold otherwise would make the powers of courts under article 226 wholly ineffective. The court in exercising its powers under article 226 has to mould the remedy to suit the facts of a case. If in a particular case a court takes the view that the Income-tax Officer, while passing an order under section 132(5), did not give an adequate opportunity to the party concerned it should not be left with the only option of quashing it and putting the party at an advantage even though it may be satisfied that on the material before him the conclusion arrived at by the Income-tax Officer was correct or dismissing the petition because otherwise the party would get an unfair advantage. The power to quash an order under article 226 can be exercised not merely when the order sought to be quashed is one made without jurisdiction in which case there can be no room ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, referred to with approval in the decision in Commissioner of Income-tax v. Ajax Products Ltd. that : " In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. " We do not consider that every provision of a taxing statute will fall within this rule. The question whether a certain provision of law is directory does not fall to be decided on different standards because it is found in a taxing statute. There is no rule that every provision in a taxing statute is mandatory. The strict construction that a citizen does not become liable to tax unless he comes within the specific words of a statute is a different proposition. That a person cannot be taxed on the principle of estoppel does not admit of much argument. Article 265 of the Constitution lays down that no tax shall be levied except when authorised by law. It was also argued based on Explanation 1 to section 132 and similar provision in certain other sections which lay down that in computing the period of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matur of the court that this order has been made. The period of limitation is one intended for the benefit of the person whose property has been seized. It is open to him to waive it. We consider that to hold that the period of ninety days which is mentioned in section 132(5) is an immutable one would cause more injury to the citizen than to revenue. It is, therefore, open to the aggrieved person, as happened in this case, to agree to a fresh disposal of the case by the Income-tax Officer and thereby waive the period of limitation. Even apart from the consent of the parties it was open to the court in Writ Petition No. 82 of 1972, to have set aside the earlier order of the Income-tax Officer and direct a fresh disposal of the matter by the Income-tax Officer on the ground which was in fact agreed to by the parties, that the aggrieved party had no reasonable opportunity of putting forward its case. It was within its power to do so. If respondents Nos. 1 and 2 wanted to urge that the order of the Income-tax Officer impugned in W.P. No. 82 of 1972 was liable to be set aside as they had no reasonable opportunity to put forward their case they could have done so. They need not have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t therefore be anything but an order under section 132(5) that was under contemplation when the consent order was passed by the High Court in W.P.No. 82 of 1972. We may in this connection refer to the decision in Wilson v. MacIntosh. In that case an applicant to bring lands under the Real Property Act filed his case in court under section 21, more than three months after a caveat had been lodged, and thereafter obtained an order that the caveator should file her case, which she accordingly did. It was held that he had thereby waived his right to have the caveat set aside as lapsed under section 23. The Privy Council held that the limitation of time contained in section 23 was introduced for the benefit of the applicant to enable him to obtain a speedy determination of his right to have the land brought under the provisions of the Act and that it was competent for the applicant to waive the limit of three months, and that he did waive it by stating a case and applying for and obtaining an order upon the appellant to state her case, both which steps assumed and proceeded on the assumption of the continued existence of the caveat. They referred with approval to the decision in Phil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court. " There is no question of the period of limitation in section 132(5) involving public interests. It is intended for the benefit of the parties. We are, thus, satisfied that as the period of limitation prescribed by section 132(5) is intended for the benefit of persons like the respondents, it is competent for them to waive it, that the respondents have in fact waived it, and the order of the High Court in W. P. No. 82 of 1972 is a consequence of such waiver, that the Income-tax Officer had, therefore, the jurisdiction to pass a fresh order. It follows, therefore, that as the High Court did not go into the question of the correctness or otherwise of the fresh order of the Income-tax Officer that the property belonged to Pooran Mal, the individual, and not to the 1st respondent-firm, it was not competent for the High Court to order the return of the 114 bars of silver to the 1st respondent-firm. There is still another reason why the or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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