9911796707
TMI Blog1978 (10) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... e ITO that in view of s. 46(7) of the Indian I.T. Act, 1922, proceedings for the recovery of the amount could not be taken against him after the expiration of one year from the last day of the financial year in which any demand was made under the Act. In spite of this submission, the ITO, vide his letter dated April 2, 1960, intimated to the appellant that a sum of Rs. 2,500 was outstanding against the appellant. On a request made by the appellant, he was furnished with the details of the amounts due from him in respect of each assessment year together with the date of assessment and the particulars of the officer to whom recovery certificate was issued, along with number and date of the certificate. The appellant made enquiries from the Treasury Officer and the Tehsildar, Srinagar. Both these officers denied to have received any certificate of recovery from the I.T. department. The appellant approached the I.T. department and appraised them of this position with a view to impress upon them that no recovery could be made from him in view of s. 46(2), s. 46(5) and s. 46(7) of the Indian IT. Act of 1922. He then made a representation to the IAC who informed the appellant that the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not produced before the learned single judge despite a demand having been made to that effect. It is also contended that the observations of the learned single judge to the effect, " that the Tehsildar and the Treasury Officer have also admitted later on that recovery certificates were received by them, as alleged by the Income-tax Officer " is not at all borne out from the record of the case and by importing these wrong facts into the judgment the learned single judge has arrived at a wrong conclusion. The appellant has a grievance that his arguments have not been fully noticed, let alone appreciated, by the learned single judge. It has been vehemently argued that the Treasury Officer and the Tehsildar had not received any recovery certificate or requisitions from the ITO with respect to the disputed amount and, therefore, the order of recovery was illegal and could not be sustained. Our attention has been invited to various paragraphs of the writ petition and in particular to paras. 8, 10 and 12 of the writ petition and various documents attached to the petition in support of the submissions made before us. For a proper appreciation of the point in controversy, it would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , if the ITO exercises this discretion and forward to the Collector the requisite certificate, the Collector on receipt of such a certificate has no option but to proceed to recover from the assessee the amount specified therein as if it were an arrear of land revenue. In the instant case, the ITO had adopted that course but from a perusal of the record it transpires that there is no evidence to show that the Collector or the Treasury Officer had actually received any certificate from the ITO. How then did the authorities proceed to recover the arrears in the manner in which it has been done in this case is not understandable. The extract produced from the register could not have been relied upon as any proof of the " receipt " of the recovery certificate by the Collector or the Treasury Officer. The appellant filed an affidavit to the effect that he had made a demand from the ITO to supply him the copies of the recovery certificates allegedly issued to the Treasury Officer and the Collector as also the copies of the correspondence exchanged and that the ITO wrote back to the appellant that he should approach the Treasury Officer and the Tehsildar and the other higher authorities d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the material on the record and even if the recovery proceedings were not sustainable in law, the judgment of the learned single judge could not be assailed since no petition can lie for the simple refund of income-tax alleged to have been wrongfully recovered from an assessee and that the remedy of the assessee, if any, is by way of a civil suit. It is argued that no writ of mandamus can be issued directing the refund of income-tax wrongfully recovered. Reliance in this respect is placed by the learned counsel on a judgment of the Supreme Court in Suganmal v. State of Madhya Pradesh, AIR 1965 SC 1740, 1742; [1965] 56 ITR 84, 86, 88, wherein their Lordships have opined thus : " ...... though the High Courts have power to pass any appropriate order in the exercise of the powers conferred on them under article 226 of the Constitution, a petition solely praying for the issue of a writ of mandamus directing the State to refund the money alleged to have been illegally collected by the State as tax is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax, and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the tax paid by the assessee was paid on the basis of invalid proceedings and that the recovery proceedings could not have been taken, it is within the jurisdiction of this court to issue an appropriate writ of mandamus directing the refund of the tax which was illegally recovered from the appellant. Reference in this connection may be made with advantage to State. of Madhya Pradesh v. Bhailal Bhai, AIR 1964 SC 1006; [1964] 15 STC 450 (SC), wherein their Lordships opined thus (AIR headnote) : " Where sales tax, assessed and paid by the dealer, is declared by a competent court to be invalid in law, the payment of tax already made is one made under a mistake within s. 72 of the Contract Act and so the Government to whom the payment has been made by mistake must in law repay it. In this respect, the High Court has, in exercise of its jurisdiction under art. 226 of the Constitution of India, power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realised by the Government without the authority of law. " Reference may also be made to a Division Bench of the Andhra Pradesh High Court in Annapu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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