9911796707
TMI Blog1986 (4) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... rom and ordered not to give effect to the acts or actions in the course of the recovery proceedings and/or grant appropriate relief to the petitioner including an order restoring the property sold in the recovery proceedings ? " The application of the doctrine of consummation of statutory remedy as a bar to the exercise of the jurisdiction under article 226 of the Constitution in Fiscus (Fiscal) Laws : Dr. Saraf, learned counsel for the respondents, has taken a preliminary objection that the application is not maintainable. Learned counsel submits that the Income-tax Act provides a complete machinery relating to assessment, levy and collection of income-tax and has also constituted forums for obtaining relief in respect of improper or erroneous orders made by the revenue authorities. On this premise, it has been contended that this court has no jurisdiction to entertain the writ petition directed against the impugned acts, actions and orders. In short, learned counsel endeavours to apply the doctrine of exhaustion of statutory remedies as a bar to the exercise of jurisdiction under article 226 of the Constitution. It is true that the court has imposed a restraint in its own w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indeed, where the bare question involved is whether the conclusion reached by the taxing authority on the question of fact is correct or incorrect, the High Court should not exercise writ jurisdiction: vide Thansingh Nathmal v. Supdt. of Taxes, AIR 1964 SC 1419; [1964] 15 STC 468 (SC). We are of the view that it is a settled principle that certiorari will go only where there is no other effective and convenient remedy. We are also of the view that the statutory system of appeal has been created for more effective and more convenient disposal of the cases before the appropriate appellate authority. Further, the party can question the validity of the findings of fact as well as issues relating to law and violation of the principles of natural justice even before the appellate or revisional authority created by the statute. However, there cannot be any doubt that an application for certiorari has the advantage that it is speedier and cheaper than the other method. In Ram and Shyam Company v. State of Haryana, AIR 1985 SC 1147, the Supreme Court dealt with the question as to whether the existence of an alternative remedy ousts the jurisdiction of the High Court under article 226 and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 17,586.56 for the tax arrears including interest. The interest, amounting to Rs. 8,228, was calculated under section 220(2) of the " new Act ". The notices were issued in pursuance of the certificate, marked annexure 'A'. He filed an application to the Tax Recovery Officer stating that the provisions of section 220(2) of the " new Act " were inapplicable to his case. However, being oblivious of the past records of the case, he submitted that the principal amount, if due, might be recovered by sale of his immovable properties located at Lala Town, District Cachar. He claims that the admission of the liability under the certificate (annexure 'A') was inadvertently made as the certificate proceedings had already been withdrawn by the Income-tax Officer. Thereafter, a sale proclamation was issued on October 10, 1974, which, inter alia, stated that his properties at Lala Town would be sold in public auction (annexure 'F'). The warrant of sale was issued on November 12, 1974, to realise the principal amount with costs. On receipt of the notice, he sent an express telegram to the Income-tax Officer, on May 21, 1974, .praying for remission of costs and stay of its execution. He mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndicate, " the firm " for short. The said cases were dropped, vide order of the Income-tax Officer marked annexures 'A' and 'B' to the affidavit-in-opposition filed by the respondents. Annexure ' A' corresponds to annexure 'C' of the writ petition. It appears that all Bakijai cases against the petitioner were amalgamated as one and numbered as Bakijai Case No. 10 (Central) of 1963-64 by the Tax Recovery Officer. In short, the respondents have categorically stated that at no point of time and for no reason whatsoever the certificate marked annexure 'A' to the writ petition had been withdrawn or cancelled by the Income-tax Officer. The respondents have clearly stated that the order dated September 28, 1966, by the Tax Recovery Officer marked annexure 'B' to the writ petition was the order of dropping Bakijai Cases Nos. 5 of 1961-62 and 9 of 1963-64 which related to the recovery proceedings against the petitioner as partner of " the firm ", and which had nothing to do with the proceedings in respect of recovery certificate marked annexure 'A' to the writ petition. The firm assertion of the respondents in the affidavit-in-opposition that the Income-tax Officer never cancelled or withdr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as revised and a fresh demand notice was issued on October 7, 1953. That apart, it has been asserted by the respondents that the petitioner had been granted liberty to make monthly instalments at Rs. 1,600 payable on the 20th of each month commencing from October, 1953, for the payment of the entire demand for the assessment years 1948-49 and 1949-50. , As such, the respondents have affirmatively asserted that the recovery certificate marked annexure 'A' was filed well within the limitation of one year " from the last day of the financial year in which the demand was made under the Act ". The petitioner has not countered any of the said statements. The contentions : Two contentions have been raised by the petitioner. First, that the Income-tax Officer in exercise of his power under section 224 of the Income-tax Act, 1961, had withdrawn or cancelled the certificate dated April 12, 1954, and on the basis thereof, the Tax Recovery Officer dropped the proceedings by his order dated September 28, 1966, marked annexure 'B ' and, therefore, the entire recovery proceeding was invalid in the absence of a subsisting recovery certificate against him. The second contention is that the certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he claim of the petitioner that the impugned certificate, marked annexure " A ", had been withdrawn or cancelled by the Income-tax Officer and in pursuance thereof the Tax Recovery Officer dropped the proceedings against him. We are, therefore, to consider whether the Income-tax Officer, the competent authority, withdrew or cancelled the certificate. The petitioner has relied on the letter of the Income-tax Officer which does not show that the impugned certificate in question was withdrawn by the Income-tax Officer. The petitioner has also relied on the order of the Tax Recovery Officer, which, in turn, also does not show that the impugned certificate was withdrawn or cancelled by the Income-tax Officer. It has been affirmatively stated by the respondents, including the Income-tax Officer, that the impugned certificate marked annexure " A " to the writ petition had never been withdrawn or cancelled. The petitioner has not placed before us any order of the Income-tax Officer withdrawing or cancelling the impugned certificate marked annexure " A ". It could be withdrawn if it was found to be invalid or the assessee had paid up the amount or the demand was set aside by a higher author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned certificate. We are of the firm opinion that the letter of the Income-tax Officer and the follow up order of the Income-tax Officer dropping the proceedings were in respect of different cases and did not pertain to the impugned certificate marked annexure " A " to the writ petition. As such, the contention fails. The last contention of the petitioner is that the recovery certificate dated April 12, 1954, was barred under section 46(7) of " the old Act " because the proceeding was not started within one year of making the relevant demand. It would, therefore, appear that the validity of certificate issued in 1954 has been challenged in the year 1975 as barred by limitation. Section 46(2) of the old Income-tax Act did not deal with the period of limitation. Even the petitioner has not correctly quoted the section under which the certificate was allegedly barred by limitation. Let us assume that it was barred by limitation under section 46(7) of the "old Act ". The ground taken in the petition is also vague. A bald statement has been made that the proceeding was " not started within one year of making the relevant demand ". On the basis of such statement of fact, it is h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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