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TMI Blog1977 (2) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... tax Officer appears to have issued notices to the receiver and proceeded to complete the assessment and ultimately assessment orders were made in respect of 1946-47 on November 24, 1948, and in respect of 1947-48 on April 30, 1949. The preliminary decree in the partition suit was made on March 7, 1951, and the final decree on July 30, 1956. As per the final decree the plaintiff got half share in the entire estate of her father and she was directed to discharge one-half of the total debts set out in the A schedule to the decree but subject to the condition that she was liable to pay only those debts as were valid and in time. The other sharers also were allotted properties subject to the same condition relating to the discharge of the debts set out in the A schedule to the decree. It appears that the receiver who was in possession of the estate had paid certain amounts of money towards the assessments. It is stated that after giving such credit to the amounts paid, there was still a balance of Rs. 22,842-14 3 due and owing in respect of the assessments. On receipt of certificates under section 46(2) of the Indian Income-tax Act, 1922, the Collector of Madras proceeded to recover the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders were not valid and binding on her were the following. She contended that after the death of her father, S.M. Sheriff, the assessment orders on the receiver were illegal, ultra vires and without jurisdiction. According to her, an assessment could be made subsequent to the death of Sheriff only on the legal representatives and the receiver was not a legal representative. She also contended that there were no valid notices under sections 23(2) and 29 of the Indian Income-tax Act, 1922, which are mandatory and that, therefore, the whole assessment proceedings were invalid. The legality of the recovery proceedings was also questioned by the plaintiff on the ground that the plaintiff, legally, could not be considered to be an assessee in default and that, therefore, no recovery proceedings could have been initiated. It was also contended that the recovery proceedings by issue of a certificate under section 46(2) of the Indian Income-tax Act, 1922, to the Collector of Madras was barred by limitation as the certificate was issued beyond the period prescribed under section 46(7). The plaintiff also questioned the validity of the sale on the ground of non-compliance of the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was not open to her to file an appeal under the relevant provision of the Act and that, therefore, section 67 of the Income-tax Act is not a bar. The lower appellate court also held that since the plaintiff could not be considered to be an assessee, she could not be regarded as an assessee in default and that, therefore, section 46(2) is not applicable and could not have been invoked by the Income-tax Officer for the recovery of the tax arrears. On the assumption that there was a valid assessment and that the plaintiff was an assessee in default the lower appellate court also held that the proceedings initiated under section 46(2) was barred by limitation, that the sale held by the Collector of Chingleput was illegal and invalid for non-compliance with the provisions of sections 25, 27 and 36 of the Revenue Recovery Act and that the plaintiff was also materially prejudiced and the sale also did not realise adequate consideration by reason of non-compliance with the provisions. On these grounds, the lower appellate court held that the sale itself was invalid. Accordingly, the appeal was allowed and the judgment and decree of the trial court was set aside and the suit was decreed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for consideration is whether the certificate under section 46(2) was made beyond the period of limitation and that, therefore neither the Collector of Madras nor the Collector of Chingleput to whom the Collector of Madras transferred the certificate had any jurisdiction to proceed with the recovery of the tax. Under section 46(2), the Income-tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from the assessee and the Collector on receipt of such certificate shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue. But sub-section (7) of section 46 provided that no proceedings for the recovery of any sum payable under the Act shall be commenced after the expiry of one year from the last day of the financial year in which any demand is made under the Income-tax Act. In respect of the assessment year 1946-47, the assessment order and the demand were issued on November 24, 1948. The last date of the financial year in which the demand was made, therefore, was March 31, 1949. In respect of 1947-48, the assessment order and the demand were made on April 30, 1949, and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though the certificate might be received by the Collector subsequent to that date. The finding of the lower appellate court is that a certificate was not issued or forwarded on or before March 31, 1950, in respect of 1946-47 and on or before March 31, 1951, in respect of 1947-48 and that is a finding with which I could not interfere with on the meagre evidence that is available in this case. It may also be mentioned that even the note-file that was available in respect of 1946-47 is not available in respect of 1947-48. This court also in the decision in Aruna Devi Jajodia v. Collector of Madras [1952] 21 ITR 349 (Mad) held that the proceedings for the recovery commence when the Income-tax Officer forwards a certificate to the Collector under section 46(2). The evidence of forwarding the certificate before the relevant date is, therefore, absolutely essential in order to clothe the Collector with the jurisdiction. The result of it is the entire proceeding for the recovery by the Collector was without jurisdiction. I shall now proceed to consider whether the sale held by the Collector of Chingleput is valid on the assumption that the certificate issued by the Income-tax Officer u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch notice and the finding of the lower appellate court is that there is no proof that any such service of demand was made on the plaintiff. Section 27 requires that the attachment of the land shall be effected by affixing a notice thereof to some conspicuous part of the land. It also requires that the attachment shall be notified by public proclamation on the land, and by publication of the notice in the district Gazette. Admittedly, there was no publication of the notice in the district Gazette. Under section 36 previous to the sale the Collector shall issue a notice thereof in English and in the language of the district, specifying the name of the defaulter, the position and the extent of land and the amount due and the time, place and conditions of sale. The finding of the lower appellate court is that there was no specification of the time, place and conditions of sale and that though it was generally referred to in the notice of sale that the sale will be held in a particular village, it was actually held in front of the house of the village munsiff and that such a notice also seems to have been affixed only on the survey stones in the land and not in the Collector's offic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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