ELIZABETH JOSEPH Vs. TAHASILDAR PEERMADE

JUDGEMENT

(1.) On 16th September, 1965 the petitioner purchased 16.2 acres of garden land from one Abraham Kallivayalil of Peruvanthanam Village in Peermade Taluk. About four years later, the petitioner was served with a memo Est. P1 dated 12-1-1969 by the first respondent, the Tahsildar, Peermade stating that an amount of Rs. 4081.35 was due from Shri Abraham as arrears of agricultural Income Tax, and that the petitioner was liable to pay the said amount by virtue of S.23 of the Agricultural Income Tax Act, 1950, and requiring the petitioner to pay the said amount within seven days of the receipt of the memo. The petitioner made representations against the above demand before the first respondent, and also before the second respondent, the District Collector, Kottayam without success. She has then filed this writ petition to quash the demand as per Ext. P1 and also for other reliefs.

(2.) The counter affidavit filed on behalf of the respondents states, among other things, that Shri Abraham A. Kallivayalil had 833.19 acres of land which he sold away to different persons, and that the amount demanded as per Ext. P1 was the arrears of agricultural income tax due from him in respect of the income from the aforesaid properties. The counter affidavit further states that action was being taken against the petitioner, as there was no possibility to recover the amount from the assessee from any properties in Peermade Taluk. S.23 relates to assessment in a case of transfer of agricultural land; and it provides that the transferor and the transferee shall each be assessed in respect of his actual share of the income during the year in which the transfer took place. There is a proviso to the section, which not only qualifies the main provisions; but also contains other substantive provisions. One of them is that the tax assessed on the transferor in respect of the accounting year in which the transfer took place, and also all arrears of tax due from him in respect of previous accounting years can be recovered from the transferee, if the same cannot be recovered from the transferor. In other words, if a person had 10 items of property; and if he sold them each to ten persons, the arrears of agricultural income tax due from the transferor in respect of the accounting year in which the transfer took place and all prior years can be recovered from any one of the transferees, if the same cannot be recovered from the transferor. There is no provision for apportionment, nor any guidance for choosing any one of the several transferees, as the person liable for the whole arrears. The provision is apparently arbitrary. The power of the legislature to make such a provision making a transferee liable without any limit for all the arrears of tax, even if it exceeds the value of the property purchased by him, is very doubtful. However, it is not necessary for me to pronounce on the constitutional validity of the proviso to S.23, since all that the counter affidavit has stated is that there is no possibility to recover the arrears of tax from the assessee from properties in Peermade. There is no case that the arrears cannot be recovered from the assessee. This is what is required under the proviso to recover the arrears from the transferee. The demand as per Ext. P1 cannot, therefore, be sustained. It is accordingly quashed on this short ground. There will be no order as to costs.