ISHA BEEVI ON BEHALF OF THE MINOR UMAIBEN BEEVI T K USMAN MUSALIAR Vs. TAX RECOVERY OFFICER AND ADDITIONAL P A TO COLLECTOR QUILON:TAX RECOVERY OFFICER QUILON

JUDGEMENT

(1.) These are fifteen Civil Appeals arising out of petitions for writs of certiorari, prohibition, and mandamus against certain tax recovery proceedings instituted against their heirs and legal representatives of Thangal Kunj. Musaliar of Kerala who died on 19-2-1966. It appears that there were arrears of Income Tax due under the Travancore Income Tax Act (of 1121 ME) (hereinafter referred to as the Travancore Act') and other enactments on income from the cashew nut export business. By an order passed on 10-6-1968, the Additional Personal Assistant of the District Collector Quilon, functioning as the Tax Recovery Officer, attached a number of immovable properties mentioned in a schedule to the order. He purported to act under Rule 48 in the second schedule to the Indian Income Tax Act of 1961, (hereinafter referred to as 'the 1961 Act'). He prohibited the appellants from transferring or otherwise dealing with properties in their possession on the basis of 22 certificates covering a total amount of Rupees 50,42,970.34 np. Some of the certificates were issued under Section 46, sub-section (2) of the Indian Income Tax Act of 1922 (hereinafter referred to as 'the 1922 Act') and others under Section 221 of the 1961 Act. The appellants, claiming to be in possession of immovable properties gifted in 1947, 1953, 1954 and 1956 by T. K. Musaliar objected to the attachment of their properties on the ground that the income tax dues against the deceased could not be recovered by attachment or sale of properties belonging to the appellants. The appellants question the jurisdiction of the Tax Recovery Officer to proceed with the recovery against their properties. The appellants also contended that taxes having become due under the Travancore Act and the 1922 Act from the deceased, recovery proceedings by their attachment under the 1961 Act were not legally competent. Furthermore, they objected that an out of 22 certificates having been issued after the death of T. K. Musaliar expressly stating that the deceased was the assessee, were prima facie invalid because neither S. 66. sub-section (3)of the Travancore Act. nor S. 221 of 1961 Act warranted the issue of certificates against an assessee after his death. They submitted that as the amounts covered by the certificates issued after the death of T. K. Musaliar were tacked on to the amounts covered by the other certificate the whole attachment was vitiated. Questions of title to the properties, said to have been gifted by the deceased long ago, were also raised.

(2.) At this stage, it may be mentioned that there had been an agreement recorded in a settlement dated 10-7-1957 the norms of which were binding upon the deceased and T. K. Musaliar and Sons Ltd. This related to assessments under the Travancore Income Tax Act and the Indian Income Tax.Act of 1922 By clause 4 of this settlement it was agreed that the Appellate Authority before which an appeal in respect of these assessments were pending could enhance or reduce the assessments in accordance with this settlement. It was also agreed that the Writ petitions in connection with assessment for certain years will be withdrawn and that penal interest under Section 18A of the 1922 Act will be paid, but no other penalties will be leviable in respect of the assessment years covered by this settlement. On 25-9-1957, an order signed by a Deputy Secretary to the Government of India was passed under Section 9, sub-section (2) of the Travancore Taxation in Income (Investigation Commission) Act l124 showing that the Government accepted the terms and conditions of the settlement recorded by the Commissioner of Income Tax and directing that demand notices in accordance with the terms of the settlement be served on T.K. Musaliar for a sum of Rs.9, 15, 458 and that such other proceedings under the Travancore Income Tax Act or "under any other law", as may be required, should be taken in order to enforce the payment of the amount demanded. Thus, for the amounts sought to be recovered in pursuance of the settlement, the machinery to realise under Section 297 (2) (j) of the 1961 Act is available according to the Department.

(3.) The learned Judge of the Kerala High Court before whom the Writ Petitions came up overruled all the objections of the appellants. He held that, although the attachment order purports to have been passed under Rule 48 of the 2nd Schedule, the Recovery Officer had authority to proceed under the Travancore Act to recover dues under that Act by recourse to the provisions of Travancore-Cochin Revenue Recovery Act 7 of 1951. He relied upon the well established proposition that where the power to proceed is actually there, the mere reference to a wrong section for authority to act, will not vitiate the action taken. (See L. Hazari Mal Kuthiala v. Income Tax Officer, 41 ITR 12 ; Income Tax Officer, Kolar Circle v. Seghu Buchiah Setty, 52 ITR 538 = (AIR 1964 SC 1473) and P. M. Bharucha and Co. v. G. S. Venkatesan, (1969) 74 ITR 513 (Guj). The learned Judge also took the view that the Income-tax dues covered by the abovementioned settlement were realized by virtue of an order made under S. 3 of the Opium and Revenue Laws (Extension of Application Act No. 33 of 1950), and, the last mentioned enactment having authorised the Income Tax authorities to apply the provisions not merely of the Travancore Act but of "any other law" the recovery proceedings for those years, even under the provisions of the 1961 Act, were unassailable. The learned Judge also thought that, as the appellants had not objected to the validity of the 11 certificates issued after the death of the deaeased, when notices were served upon them under rule 85 of the second Schedule to the 1961 Act, they were debarred from taking up such an objection in their Writ Petitions. As regards the title claimed to properties alleged to have been wrongly attached, the learned Judge pointed out that the appellants had not only already resorted to alternative remedies by way of suits but had not yet availed themselves of their remedy by preferring objections under Rule 11 of the second Schedule to the 1961 Act, where such objections could also be decided.