9911796707
TMI Blog1983 (11) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... opriating large sum of Government money in the discharge of his official duties. The District Judge became custodia legis of the said properties belonging to Shri S. K. Ghose, since deceased, and a receiver has been appointed for realising the income out of the said property for liquidating the said amount of rupees seventy-five lakhs out of the income of the said properties under attachment. It appears that in 1962, the Commissioner of Income-tax wanted to realise income-tax out of the estate of Shri S.K. Ghose under attachment but the then District judge by his Order No. 678 dated August 3, 1962, held that under sub-s. (3) of s. 13 of the said Ordinance, the amount found in the final judgment should first be forfeited to His Majesty (now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Rule No. 871(W) of 1979 has come to the conclusion that in view of the said judgment of this court, the Commissioner of Income-tax cannot claim any income-tax from the estate so long as it is under attachment. If the Commissioner of Income-tax tries to avoid the refund of the tax already realised or by applies dilatory tactics, the only course that will be left open to the said court is to pass an executable order in respect of the amounts paid by the present receiver after he assumed charge of the office in 1974 and to ascertain the total payments made by his predecessor-in-office. Mr. Pal, the learned counsel appearing for the petitioner, has contended that in the said civil rule, this court referred to the order passed by the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /or the representative of the owner of the said properties cannot be assessed to any income-tax under the I.T. Act. Mr. Pal also contended that the proceeding under the I.T. Act is not a legal proceeding in a court of law and under the Ordinance, so long as the attachment continues, any proceeding in a court of law remains stayed, but not the proceeding before the income-tax authorities which is a proceeding before a tribunal and/or quasi-judicial authorities. Mr. Pal also contended that an adjudication under the I.T. Act in respect of a particular year cannot be held to be an adjudication for all subsequent years of assessment. The principle of res judicata is not applicable in the matter of subsequent assessment and the law is well settle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he income out of the said properties only for the purpose of liquidating the said debt so that on liquidation of debts the properties are released from attachment. He has contended that as such debt is due to the sovereign State, no other payment including the payment on account of tax can claim precedence over the payment to be made for liquidating the debt of the said S. K. Ghose, deceased, and precisely for the purpose of such liquidation, the properties are under attachment under the said Ordinance. He contended that the learned District judge is, therefore, justified in holding that the receiver should not be directed to make any payment of income-tax out of the income received by him from the properties under attachment and in the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch owners did not incur any liability whatsoever for payment of income-tax on the income received from the said properties. By upholding the order passed by the learned District judge in August, 1962, this court, in my view, had held by necessary implication that the income-tax authorities were not entitled to attach the properties for realisation of any income-tax payable by the owners of the said properties so long as the attachment remains under the Ordinance. In the facts of the case, it must be held that the question as to the liability of the owners and/or the representative for payment of income-tax for the income received from the said properties was not necessary to be decided and had not been decided in a proper proceeding. Mr. M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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