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TMI Blog1975 (9) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... s " the Travancore Act ") and other enactments on income from the cashew nut export businesses. By an order passed on June 10, 1968, the Additional Personal Assistant of the District Collector, Quilon, functioning as the Tax Recovery Officer, attached a number of immovable properties mentioned in a schedule to the order. He purported to act under rule 48 in the Second Schedule to the Income-tax Act of 1961 (hereinafter referred to as " the 1961 Act "). He prohibited the appellants from transferring or otherwise dealing with properties in their possession on the basis of 22 certificates covering a total amount of Rs. 50,42,970.34. Some of the certificates were issued under section 46, sub-section (2), of the Indian Income-tax Act of 1922 (hereinafter referred to as " the 1922 Act "), and others under, section 221 of the 1961 Act. The appellants, claiming to be in possession of immovable properties gifted in 1947, 1953, 1954 and 1956, by T. K. Musaliar objected to the attachment of their properties on the ground that the income-tax dues against the deceased could not be recovered by attachment or sale of properties belonging to the appellants. The appellants question the jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount demanded. Thus, for the amounts sought to be recovered in pursuance of the settlement, the machinery to realise under section 297(2)(j) of the 1961 Act is available according to the department. The learned judge of the Kerala High Court before whom the writ petitions came up overruled all the objections of the appellants. He held that although the attachment order purports to have been passed under rule 48 of the Second Schedule, the Recovery Officer had authority to proceed under the Travancore Act to recover dues under that Act by recourse to the provisions of the Travancore-Cochin Revenue Recovery Act 7 of 1951. He relied upon the well established proposition that where the power to proceed is actually there, the mere reference to a wrong section for authority to act, will not vitiate the action taken. (See L. Hazari Mal Kuthiala v. Income-tax Officer, Special Circle, Ambala Cantt., Income-tax Officer, Kolar Circle v. Seghu Buchiah Setty and P. M. Bharucha Co. v. G. S. Venkatesan, Income-tax Officer, Circle I, Ward A, Bhavanagar). The learned judge also took the view that the income-tax dues covered by the above-mentioned settlement were realized by virtue of an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his stage, if they were entirely without jurisdiction. Otherwise, a prayer for quashing proceedings would, obviously, be premature. No occasion for the issue of a writ of mandamus can arise unless the applicants show non-compliance with some mandatory provision and seek to get that provision enforced because some obligation towards them is not carried out by the authority alleged to be floating the law. The grievance of the appellants, however, is that the Tax Recovery Officer had no jurisdiction whatsoever to start tax recovery proceedings against them. They have, therefore, asked for writs of prohibition. The existence of an alternative remedy is not generally a bar to the issuance of such a writ or order. But, in order to substantiate a right to obtain a writ of prohibition from a High Court or from this court, an applicant has to demonstrate total absence of jurisdiction to proceed on the part of the officer or authority complained against. It is not enough if a wrong section or provision of law is cited in a notice or order if the power to proceed is actually there under another provision. One of the identically similar notices to which objection was taken by the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Division Bench overruled this contention on the ground that the proviso to section 13(1) of the Indian Finance Act, 1950, made it clear that the authority constituted under the provisions of the Act of 1922, empowered to proceed, must be determined by resorting to the provisions of section 8(1) of the General Clauses Act, which reads as follows : " Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted." The 1922 Act was repealed by the 1961 Act. Hence, it held that section 2(44) of the 1961 Act read with section 221 of that Act, were sufficient to enable the Additional Personal Assistant to the Collector to proceed as a Tax Recovery Officer. Section 13, sub-section (1) of the Finance Act, 1950, laid down : " 13. (1) If immediately before the last day of April, 1950, there is in force in any Part B State other than Jammu and Kashmir or in Manipur, Tripura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under his signature specifying the amount of arrears due from the assessee, and the Tax Recovery Officer on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein by one or more of the modes mentioned below, in accordance-with the rules laid down in the Second Schedule-- (a) attachment and sale of the assessee's movable property ; (b) attachment and sale of the assessee's immovable property ; (c) arrest of the assessee and his detention in prison ; (d) appointing a receiver for the management of the assessee's movable and immovable properties." Hence, even if the " Peishkar " was the competent officer under the Travancore Income-tax Act, the duties of the Peishkar as the Recovery Officer, would, by operation of the above-mentioned provisions of law, automatically devolve upon the Collector or an Additional Collector or upon such officer as may be empowered by the State Government by a special or general notification in the Official Gazette " to effect recovery of land revenue or other public demand " under any law relating to land revenue or other public demand. The appellants, not having raised the question at any earli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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