DAKSHINAMOORTHY MUDALIAR V M Vs. TAX RECOVERY OFFICER

JUDGEMENT

(1.) THE petitioner has come up to this court praying for the issue of a certiorarified mandamus to call for the record of the petitioner on the file of the first respondent TR. Nos. 815 to 819/1984-85 34 to 38/1987-88 and No. 6/11/1989-90 and quash the impugned order dated December 17, 1991, and consequently, direct the respondents to grant the certificate under section 230A of the Income-tax Act, 1961.

(2.) THE petitioner entered into an agreement with his own sons for sale of the ground situate in No. 9, Greenways Road, Madras-28, for a sum of Rs. 14 lakhs and filed an application under section 230A of the Income-tax Act requesting them to grant a certificate for the purpose of the income-tax. On an earlier occasion, the petitioner, has come up to this court in Writ Petition No. 2895 of 1989. After taking of notice by Mr. C. K. Rajan, learned counsel for the Income-tax Department, and by consent of both parties, S. Ramalingam J., by order March 22, 1989, in the aforesaid writ petition, has granted a week's time to pay a sum of Rs. 5,00,000 (rupees five lakhs) and further ordered that the balance should be paid within a period of two months from the said date of order and that if there is any default in observing any of the conditions, the Revenue is entitled to proceed further with the recovery proceedings. In that case, the learned judge has further directed that if the petitioner makes an application under section 230A of the Income-tax Act, the respondents could pass orders on that application. Later on, the petitioner came up before this court by way of a writ petition W. P. No. 15207 of 1991 - Sri. V. M. Dakshinamoorty Mudaliar v. Asst. CIT - praying for a writ of mandamus to direct the first respondent to pass an order on the pending application dated March 7, 1990, for granting a certificate to the petitioner under section 230A of the Income-tax Act. In that case, by an order dated October 30, 1991, this court directed the first respondent herein toe consider the application of the petitioner under section 230A of the Income-tax Act and pass orders on merits, taking note of the order of Shri S. Ramalingam J., cited supra, on or before November 30, 1991. THE Assistant Commissioner of Income-tax, City Circle-IV(2), Madras, the second respondent herein passed an order on November 28, 1991, on the application of the petitioner under section 230A of the Income-tax Act, refusing to grant as the transfer of property will be prejudicial to the interests of the Revenue for the reasons that there ware huge arrears outstanding and that the petitioner has not complied with the orders of S. Ramalingam J., dated March 22, 1989, in W. P. No. 2895 of 1989 - V. M. Dhakshinamurthy Mudaliar v. Settlement Commissioner. This order has become final. When the said property is brought to sale and proclamation is issued under rules 38 and 32(2) of the second Schedule to the Income-tax Act, 1961, and the date of auction is fixed on January 20, 1992, the petitioner is before me with the aforesaid prayer.

(3.) I have considered the arguments of Mr. P. P. S. Janarthana Raja, learned counsel for the petitioner, and or Mr. N. V. Balasubramaniam, Junior standing counsel for the Income-tax Department. I have also perused the statement of accounts produced by learned counsel for the respondent-Department with regard to the arrears due by the petitioner to the Department. Having given due consideration to the arguments of learned counsel on both sides and on a perusal of the affidavit and the relevant materials available, I am not able to agree with the argument of learned counsel for the petitioner than a certificate under section 230A of the Income-tax Act can be issued at this situation. A reading of the section clearly shows that, unless the Income-tax Officer is satisfied with certain conditions which are set out in section 230A of the Income-tax Act, this court cannot direct the respondents-Department to issue a certificate under section 230A of the Act. When construing the provisions of section 230A of the Act, the observation of Rowlatt J. in Cape Brandy Syndicate v. IRC [1921] 1 KB 64, 71; [1921] 2 KB 403 (CA), has to be kept in mind. In the above mentioned decision, Rowlatt J. has observed as follows :