K P MATHEN PANICKER Vs. ITO QUILON

JUDGEMENT

(1.) THE petitioner was served with a notice dated 15-5-1963 under R. 73 of the Second schedule to the Income-tax Act, 1961, by the 2nd respondent asking him to show cause why he should not be arrested for the failure to pay the arrears of income-tax due from him. Ext. P-1 is a copy of that notice. THE notice was on the basis of the certificate issued by the 1st respondent to the 2nd respondent for the arrears of income-tax for the years 1952-53 and 1953-54. THE petitioner alleges that his immovable properties had been attached and sold by the 2nd respondent, that he has no means to pay the balance amount and that the notice issued is without jurisdiction.

(2.) TWO points were argued by counsel for the petitioner. The first point was that Art. 20 of the Constitution was a bar to the arrest and detention of the petitioner. The argument of counsel was that the tax became payable by his client under the Income-tax Act of 1922, that the amount due under that Act could have been realised only as arrears of land revenue, and that he could not have been arrested, as the Travancore-Cochin Revenue Recovery act did not contain a provision for the arrest of a defaulter. It was therefore submitted that as the petitioner could not have been arrested under the Act of 1922, he is not liable to be arrested merely because of the repeal of that Act and the passing of the Act of 1961, as that would be imposing a penalty on his client which was not in existence when the liability to pay the tax was incurred. It was submitted for the Department that the petitioner could have been arrested under the proviso to S. 46 (2) of the Income-tax Act, 1922, and therefore there is no basis for the argument that a penalty which was not in existence under the old Act is being imposed upon him under the new Act The argument that the petitioner could have been arrested under the old Act apart from the provisions of the Revenue Recovery Act, is based upon the proviso to sub-section (2) of S. 46 which runs as follows: "the Income-tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from an 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: Provided that without prejudice to any other powers of the Collector in this behalf, he shall for the purpose of recovering the said amount have the powers which under the Code of Civil Procedure, 1908 (Act 5 of 1908) a Civil Court has for the purpose of the recovery of an amount due under a decree. " But in Purshottam Govindji Halai v. Additional Collector of Bombay (1955-28 I. T. R. 891) S. R. Das, C. J. , negatived this argument and observed: "on a proper reading, that sub-section does not prescribe two alternative modes of procedure at all. All that the sub-section directs the Collector to do is to proceed to recover the certified amount as if it were an arrear of land revenue, that is to say, he is to adopt the procedure prescribed by the appropriate law of his State for the recovery of land revenue and that in thus proceeding he is, under the proviso, to have all the powers of a Civil Court has under the Code. The sub-section does not prescribe two separate procedures. . . In our opinion the proviso does not indicate a different and alternative mode of recovery of the certified amount of tax but only confers additional powers on the Collector for the better and more effective application of the only mode of recovery authorised by the body of sub-section (2) of S. 46. " Article 20 of the Constitution is as follows: " (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3) No person accused of any offence shall be compelled to be a witness against himself. " In order that this Article may apply it has first to be established that the recovery of the arrears of income-tax by arrest would constitute a penalty, I do not think that arrest and detention of a person for realising the arrears of income-tax can by any stretch of imagination be considered to be a penalty. It is only a method of recovery of the tax. Therefore the foundation of the argument that the petitioner is being subjected to a penalty which was not in existence at the time when the liability for the tax was incurred goes.