9911796707
TMI Blog1966 (2) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... ry Officer) for recovering the tax. As the mode of recovery by attachment of properties did not prove effective, proceedings were taken for realising the tax arrears by arrest and detention of the petitioner in civil prison. Two notices under rule 73 of the Second Schedule to the Income-tax Act, 1961, were issued by the Tax Recovery Officer. The first notice called upon the petitioner to show cause why the tax arrears should not be recovered from him by his arrest and detention in civil prison. It appears that as the first notice of July 15, 1965, had not specifically referred to the certificates of recovery issued by the 2nd respondent (Income-tax Officer), a subsequent notice dated July 27, 1965, was issued specifically mentioning that the petitioner had not paid the taxes shown in the certificates of recovery dated March 22, 1962, December 28, 1962, March 28, 1964, and November 12, 1964. In response to these notices, the petitioner appeared before the Tax Recovery Officer and made representations that he is not liable to be arrested and detained in civil prison for recovery of the tax arrears. After the enquiry, the Tax Recovery Officer held that the petitioner was guilty of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t permitted to be raised in the writ appeal, as already stated. It is that the assessee was a Hindu undivided family and, therefore, it alone could be treated as a defaulter for purposes of rule 73 and consequently the karta of the family could not be arrested and detained in civil prison for realising the tax arrears payable by the joint family. This writ petition is resisted by the respondents on the grounds that it is barred by constructive res judicata, that, in any event, the petitioner cannot be permitted to raise for the first time a ground which was not taken by him in the prior proceedings in this court or before the Tax Recovery Officer or the appellate authority under rule 86, that the petitioner, as the karta of the Hindu undivided family, is liable to be arrested and committed to civil prison for recovery of the tax arrears in view of the provisions of rule 73(1)(a) and (b) and that the petitioner has not come to this court with clean hands and that his attempt is only to delay or defeat recovery of the tax arrears. The main question that has been argued before us is whether the present writ petition is barred by constructive res judicata. The facts, which we have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his court, there can be no point or purpose in impugning the show cause notice. The challenge to the validity of the notice can be effective and fruitful only if it can lead to a decision that the final order of committal of the petitioner to prison is bad. Mr. Narasaraju for the petitioner frankly states that this is the true position. The prayer in the present writ petition that the respondents be restrained from giving effect to the notices issued under rule 73 is, therefore, just a thinly veiled attempt to challenge once again the order of committal to civil prison passed against the petitioner by the Tax Recovery Officer. But this order has already been upheld by a Division Bench of this court in their judgment dated February 1, 1966, in Writ Appeal No. 166 of 1965. Mr. Narasaraju for the petitioner does not gainsay that the ground on which the present writ petition is rested could well have been taken by him in W. P. No. 1274 of 1965 and Writ Appeal No. 166 of 1965. Indeed, an almost last-minute attempt was made by the petitioner to raise this ground in the writ appeal but he was not permitted to raise it. It is this that has led to the filing of the present writ petition. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause of action ; but basically, even this view is founded on the same considerations of public policy, because if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time ; and that plainly is inconsistent with considerations of public policy to which we have just referred. Mr. Narasaraju has however placed reliance upon another decision of the Supreme Court in Amalgamated Coalfields Ltd. v. Janapada Sabha, Chhindwara. But this decision has been clearly distinguished in Devilal Modi v. Sales Tax Officer. The decision in Amalgamated Coalfields Ltd. v. Janapada Sabha, Chhindwara, turned on facts far removed from the facts of the present case and cannot therefore affect the applicability of the doctrine of constructive res judicata to the instant case. The present case is not one where a new ground is taken by an assessee to impugn an assessment order relating to a subsequent year. This is a case where an order for the recovery of the entire arrears of tax by committing the petitioner to prison was passed and the validity of that order was challenged in W. P. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
