9911796707
TMI Blog2003 (12) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... J.-This writ petition has been filed for quashing the notice dated March 26, 1997, published in the Hindi newspaper Rashtriya Sahara dated March 28, 1997, vide annexure 13 to the writ petition, and to quash the recovery proceedings against the petitioner and for vacating the attachment and restoring the properties in question to the petitioner. The petitioner has also prayed for quashing the sale of immovable properties of the petitioner at Padrauna and Tamkuhi, and has also prayed for a mandamus restraining the respondents from selling immovable properties Nos. 170 and 360 Sahebganj, Padrauna. Heard learned counsel for the parties. It is alleged in para. 2 of the petition that the petitioner is a grand son of Shri Hari Ram S/o. Shri Ramanand, who along with other persons were partners in the firm known as M/s. Ganesh Narain Onkarmal. The particulars are given in para. 2 of the writ petition. Subsequently, two of the partners died and one Sri Durga Prasad joined the partnership. Certain income-tax recoveries were issued against the members of the firm and one of the partners, Matadin Khetan, filed a Writ Petitition No. 5957 of 1971 (Matadin Khetan v. Union of India) challen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... become final under Chapter XX of the Income-tax Act. A true copy of the attachment order dated March 21, 1979, is annexure 11A to the writ petition. It is alleged that the sale of the properties is barred by rule 68B of the Second Schedule to the Income-tax Act. By the impugned notice dated March 26, 1997, published in the newspaper Rashtriya Sahara dated March 28, 1997, the properties 170 and 360 Sahebganj, Padrauna, have been notified to be auctioned on March 31, 1997, vide annexure 13 to the petition. Aggrieved this petition has been filed in this court. A counter affidavit has been filed and we have perused the same. In para. 5 of the counter affidavit it is stated that on a reference made by the Tax Recovery Officer, Third Central, Bombay, recovery proceedings were started and several properties of the defaulters situated at different places including property at 360, Sahebganj South, Padrauna, were attached. In para. 12 it is stated that there was a huge demand against the defaulter and the tax outstanding was not paid by him even after several opportunities, and hence there was no option but to auction the immovable properties of the defaulters. It is alleged in par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale of the immovable property is less than 180 days, such remaining period shall be extended to 180 days and the aforesaid period of limitation shall be deemed to be extended accordingly. (3) Where any immovable property has been attached under this part before the 1st day of June, 1992, and the order giving rise to a demand of any tax, interest, fine, penalty or any other sum, for the recovery of which the immovable property has been attached, has also become conclusive or final before the said date, that date shall be deemed to be the date on which the said order has become conclusive or, as the case may be, final. (4) Where the sale of immovable property is not made in accordance with the provisions of sub-rule (1), the attachment order in relation to the said property shall be deemed to have been vacated on the expiry of the time of limitation specified under this rule." It appears that the wife of the petitioner filed Writ Petition No. 957 of 1994 by which she challenged the same action of the respondent authorities. The said writ petition was dismissed by this court as stated in para. 6 of the counter affidavit. In our opinion, rule 68B of the Second Schedule to the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uzuki Ltd. [2003] 1 RC 503: "...the right of the appellant does not get defeated by the subsequent amendment made in sub-rule (5) of rule 9B. The Commissioner of Central Excise and the CEGAT were, therefore, justified in holding that the claim for refund made by the appellant had to be decided according to the law laid down by this court in Mafatlal Industries Ltd.'s case [1997] 5 SCC 536 and would not be governed by the proviso to sub-rule (5) of rule 98B" Nothing has been mentioned either in the writ petition or even in the written arguments as to when the orders giving rise to the demand had become conclusive and final either by an order of the Settlement Commission under section 245-I or by any order of the appellate authority or revising authority under section 246, 254(1) or 263/264 of the Income-tax Act giving rise to the demands for which the recovery proceedings were initiated in the year 1972 itself when one of the writ petitions was filed. However, it is obvious from the facts that all the orders became conclusive much before 1980 and the period of three years as given in rule 68B also expired much before the addition of rule 68B. Hence, in our opinion, rule 68B is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive application." Broom in his Legal Maxims writes: Moon v. Durden [1848] 2 Exch. 22, is a leading case upon this subject. It was an action upon a wager, commenced before the passing of the Gaming Act, 1845, which enacts that all contracts by way of wagering shall be null and void, and that "no suit shall be brought or maintained" for recovering money alleged to be won upon a wager. This Act was passed while the action was pending and the question was whether it operated to defeat the plaintiff's claim. The Court of Exchequer decided that it did not. "The language of the clause", said Parke J., "if taken in its ordinary sense, as in the first instance we ought to take it, applies to all contracts-both past and future, and to all actions both present and future on any wager, whether past or future." However, it is, as Lord Coke says: "A rule and law of Parliament that regularly, nova constitutio futuris formam imponere debet, non praeteritis. This rule, which is in effect that enactments in a statute are generally to be construed to be prospective, and intended to regulate the future conduct of persons, is deeply founded in good sense and strict justice, and has been acted upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ponds to a right in the State to get those taxes. Hence, the State had a vested right long before rule 68B came into force with effect from June 1, 1992. This right of the State should not be denied by treating rule 68B as retrospective. It is well settled that a statute which impairs vested rights or the legality of past transactions or obligations should not prima facie be held to be retrospective. Vested rights belong to the State also, and not merely to private parties. The right of a State to collect its taxes cannot be taken away or restricted by implication vide N. C. Agarwal v. Krishan Lal Mehra, AIR 1961 All 104 [FB] and Gaddam Narsa Reddy v. Collector, AIR 1982 AP 1 [FB], etc. In our opinion, a statute is not to be construed to operate retrospectively so as to take away a vested right unless that intention is made manifest by language so plain and unmistakable that there is no possibility of any choice of meaning. In view of the clear enunciation of the law we are of the opinion that the petitioner will not get the benefit of rule 68B which came into effect from June 1, 1992. The State has a right to collect taxes, for without taxes the State cannot function. Mo ..... 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