(1.) THE above writ petition has been filed by the wife, the second petitioner, and two sons of the late Shri Sukhdev Singh, who was said to have died on March 15, 1989. During his life time, the deceased, Sukhdev Singh, was said to have been running a business by forming an "association of persons" bearing the name "Kangra Iron and Steels Syndicate", Kangra, in the year 1950. Concedingly, he had a flourishing business for some time but after about ten years the business came to a stand-still and was ruined, compelling, according to the petitioner, the deceased to sell almost all his assets to clear liabilities and debts in addition to mortgaging the house before his death. So far as the issues raised in the case on hand are concerned, the determination of which do not require the other details except noticing the fact that on account of the business activities carried on by the late Sukhdev Singh when he was alive, he incurred liabilities under the Income-tax Act, 1961, in respect of the assessment year 1960-6i to the tune of Rs. 12,868 and in respect of the assessment year 1961-62 to the tune of Rs. 26,494 as disclosed in annexures PA and PB filed with the writ petition. THE wife, the second petitioner herein, was also said to be one of the members of the association of persons, which carried on the business though, it is now claimed in the affidavit filed by the first petitioner, her son, that she had no knowledge and was ignorant about any of the business activities, she being illiterate. Efforts appear to have been taken at various points of time for enforcing the recovery of outstanding dues with interest and penalty recoverable thereon on account of the delay and it did not yield fruitful results. Reference is made by the petitioners in this petition about some enquiries at some point of time by the officers and recommendations which were said to have been made to issue non-recovery certificate but that was not done so and, therefore, the recovery proceedings were kept alive and pursued apparently on account of the fact that the deceased has left behind him house property, which is said to be a residential house and which is claimed to be also subject to a mortgage. THE defaulted amount with accumulated interest and penalty has got multiplied to the tune of Rs. 1,48,509. In 1995, when notices were issued, the first petitioner as also the second petitioner did not properly respond and even when a notice was issued on December 20, 1995, to call upon the petitioner to show cause as to why a warrant of arrest be not issued, as in respect of earlier letters the response was, refusal to receive, which necessitated the issue of a warrant of arrest dated January 31, 1996, to enforce the personal attendance and presence of the first petitioner, who, it is now claimed, was constrained under pressure to give a statement agreeing to clear the arrears by March 15, 1996. Though the petitioner would claim that the petition under Section 220(2) of the Income-tax Act, 1961, has been filed before the Commissioner of Income-tax, Patiala, admittedly, it was allowed to be dismissed for non-appearance and non-prosecution. It is in such circumstances, the petitioners have filed the present writ petition seeking for the following reliefs :
(2.) BEFORE even adverting to the contentions of the parties on either side, it would require our observations to be made even on the tenability of the nature of the prayer sought for within the scope of this writ petition. This court is not concerned and cannot deal with the question of any waiver because that is the jurisdiction of the authorities functioning under the Act and unless they move those authorities, there is no scope for their coining to this court with any such reliefs. The next relief sought for is a direction not to arrest or harass the petitioners, in any manner. It would be considered hereinafter whether they are liable to be arrested and if they are liable to be and such arrest would be in accordance with law, it is futile for anyone including the petitioners to claim any harassment. The respondents in their reply, would submit that the object was not to arrest the petitioners and it was not given out that they will be arrested. As indicated earlier, since they were avoiding facing even the enquiries and disclosing the particulars sought, the arrest warrant appears to have been issued, which has become, in our view, mainly essential on account of the behaviour and attitude of the petitioners themselves exhibiting" a defiant and indifferent attitude to the notices issued. As to the question of arrest, Rule 81 contained in Schedule II to the Act prohibits the arrest and detention of a woman. Consequently, the question of arrest of the second petitioner would not arise. So far as the other petitioners are concerned, Rule 85 of the very Schedule would indicate that if at any time after the certificate is drawn up by the Tax Recovery Officer the defaulter dies, the proceedings under the Schedule can be pursued as if the legal representatives were the defaulters except in respect of arrest and detention. So far as the other reliefs sought for in the nature of a direction not to proceed against the residential house of the petitioners for recovery of the arrears are concerned, the legality and propriety of the same has to be and is being considered, hereinafter.
(3.) EVEN learned counsel for the petitioners apparently anticipating the stand that may be taken for the respondents invited our attention to the decision reported in Himachal Lithographers v. Punjab and Sind Bank, 1999 1 SLC 117, rendered by a Division Bench of this court, wherein the applicability of the amendment introduced by the Himachal Pradesh Debt Reduction Act, 1976, came to be considered in respect of a suit filed by the Punjab and Sind Bank against the defaulter, who had borrowed loan from the said bank. The Division Bench has considered even the decision of the apex court in Kiran Bala v. Surinder Kumar, AIR 1996 SC 2094 ; [1996] 4 SCC 372, strongly relied upon before us also by learned counsel for the petitioners in support of his stand, as noticed above, to claim exemption of the property in question from the recovery proceedings under the Act, and held that the said decision will have no application to the type of cases on hand considered by the learned judges of the Division Bench. In paragraph 12 of the judgment of the Division Bench, it has been specifically held that Clause (ccc) to Sub-section (1) of Section 60 of the Code of Civil Procedure, as inserted by Section 21 of the Himachal Pradesh Debt Reduction Act would apply only to the execution of the decrees to which the Act applies and it has no general application. It is this specific conclusion arrived at by the Division Bench, which is virtually put into controversy and contest by learned counsel for the petitioners. In order to substantiate his contentions, learned counsel for the petitioners endeavoured much and even at length to impress upon us by submitting that the judgment of the Division Bench did not properly consider the ratio of the Supreme Court decision, reported in Kiran Bala v. Surinder Kumar, AIR 1996 SC 2094 ; [1996] 4 SCC 372 and that the amendment introduced by the Himachal Pradesh Debt Reduction Act being similar and identical to the one, which prevailed in Punjab and which came to be considered by the Supreme Court, the ratio must be applied and that the judgment of the Division Bench will not govern this case before us. It was also further contended before us for the petitioners that the provisions of Section 21 had the effect of incorporating in the Code of Civil Procedure, Clause (ccc) and, therefore, it applied by virtue of the provisions contained in the Second Schedule to the Income-tax Act, itself, very much to the present case, and, therefore, the property is exempt. To support his claim about the applicability of the principle of legislation by incorporation as also the manner in which a proviso has to be construed and the question as to the inconsistency or otherwise of two amendments, one effected by the State Legislature and another by Parliament, several decisions have been brought to our notice. We are of the view that they are not only irrelevant but besides the point that is really in issue before us and, therefore, we refrain from making any reference to the same. In our view, the only relevant decisions are the one reported in Himachal Lithographers v. Punjab and Sind Bank, [1999] 1 Sim. L. C. 117 and Kiran Bala v. Surinder Kumar, AIR 1996 SC 2094 ; [1996] 4 SCC 372. Since the petitioners have not staked claims based on Clause (ccc) to Sub-section (1) of Section 60 of the Code of Civil Procedure, even the decision brought to our notice and reported in State Bank of India v. Balak Raj Abrol [1992] 2 Sim. L. C. 172, has no relevance.