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PETITIONER: ISHA BEEVI ON BEHALF OF THE MINIOR UMAIBEN BEEVI& ORS.

       Vs.

RESPONDENT: THE TAX RECOVERY OFFICER & ADDL. P.A. TO COLLEC-TOR, QUILON

DATE OF JUDGMENT05/09/1975

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH KHANNA, HANS RAJ GUPTA, A.C.

CITATION:  1975 AIR 2135            1976 SCR  (1) 881  1976 SCC  (1)  70

ACT:      Practice-Writ of  Prohibition of  Mandamus-When can  be issued.      Income Tax  Act, 1961-Second  Schedule rr.  11 and  48- Notices for  recovery of  tax-Whether Personal  Assistant to Collector could issue.

HEADNOTE:      Purporting to  act under  the provisions  of Income-tax Act,  1961,   the  Additional   Personal  Assistant  to  the Collector, who  was functioning  as the tax recovery officer issued notices  to  the  appellants  prohibiting  them  from transferring or  otherwise dealing  with the  properties  in their possession  on the  basis of 22 certificates issued to them under  the Indian  Income-tax Act, 1922 and the Income- tax Act,  1961 because  arrears of  income tax were due from the deceased  assessee. The  appellants who claimed that the properties were  gifted to  them by  the deceased  assessee, questioned (i) the jurisdiction of the Tax Recovery officer, as also  his competence to the issue of recovery proceedings under the  1961 Act,  because the taxes became due under the Travancore Income  tax Act  and 1922 Act; (ii) and the issue of 22 certificates on the ground that neither the Travancore Act nor  the 1961  Act warranted  the issue  of certificates against an  assessees after his death. The appellants prayed for  the   issue  of   writs  of  mandamus,  certiorari  and prohibition.      The High Court dismissed the petitions.      Dismissing the appeals, ^      HELD: (1)(a)  The orders sought to be quashed were only notices  of   commencement  of   recovery   proceedings   by attachment of certain properties. Final orders could only be passed after  the appellants have had their opportunities to object under r.11 of the Second Schedule to 1961 Act because the notices  purported to  be only preliminary notices under r. 48  of  the  Second  Schedule  to  the  1961  Act.  These proceedings could  only be  quashed if  they  were  entirely without jurisdiction.  Otherwise a  prayer for  quashing the proceedings would obviously be premature. [684 E-F]      (b) No occasion for the issue of writ of mandamus could

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arise unless  the appellants showed non-compliance with some mandatory provision  and seek to get that provision enforced because some  obligation towards  them is not carried out by the authority alleged to be flouting the law. [684 F-G]      (c) The appellants have asked for writs of prohibition. The existence  of an  alternative remedy  is not generally a bar to  the issuance  of such a writ or order. But, in order to substantiate a right to obtain a writ of prohibition from a High  Court or  from this  court, an  application  has  to demonstrate total  absence of jurisdiction to proceed on the part of  the officer or authority complained against.  It is not enough  if a  wrong section or provision of law is cited in a  notice or  order if  the power  to proceed is actually there under another provision. [684 H]      (2) The  appellants not  having raised  the question at any earlier  stage that the Additional Personal Assistant to the  Collector  was  not  an  officer  authorised  to  issue notices, could  not do  so in  appeal to this Court. Even if the Peshkar  was the  competent officer under the Travancore Income tax  Act. his duties as tax recovery officer would by operation of  the various  provisions of  law  contained  in s.8(1) of the General Clause Act. s.13(1) of the Finance Act 1950, s.2(44),  and s.221  of the  1961  Act,  automatically devolve upon  the Collector  or Additional Collector or upon such officer as may be empowered 13-L925 SupCI/75. 682 by the State Government by a special or general notification in the  official gazette  to effect recovery of land revenue or other  public demand  under  any  law  relating  to  land revenue or other public demand. [688 A; 687 H]      (3) If  any  part  of  the  property  is  illegally  or unjustiably  attached,   it  does   not  really  affect  the jurisdiction of  the Tax Recovery Officer to proceed to deal with an  objection under r.11 in Schedule 2 of the 1961 Act. [688 E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal Nos. 1489- 1499, 1159 & 1160 (NT) of 1970.      From the  judgment and  Decree dated the 30th September 1969 of  the Kerala  High Court at Ernakulam in Writ Appeals Nos. 493  to 495,  497 to  500, 502  to 505,  492 and 501 of 1969.      D.V. Patel,  M. Ramchandran  and A.S.  Nambiyar for the appellants.      B. Sen, B.S. Ahuja and S.P. Nayar for the respondents.      The Judgment of the Court was delivered by      Beg, J.  These are fifteen Civil Appeals arising out of petitions for writs of certiorari, prohibition, and mandamus against certain  tax recovery proceedings instituted against the 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  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

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their possession  on the basis of 22 certificates covering a total  amount   of  Rs.   50,42,970.34  np     Some  of  the certificates were  issued under Section 46, sub s (2) of the Indian Income-tax  Act of  1922 (hereinafter  referred to as the 1992 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 from the deceased, recovery proceedings  by their attachment under the 1961 Act were not  legally competent. Furthermore, they objected that all 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 Section 66, Sub s. (3) of the Travancore Act nor Section 221 of 1961  Act warranted  the issue of certificates against an assesse after 683 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 certificates the whole attachment was vitiated. Questions of title to the properties, said  to have  been gifted  by the deceased long ago were also raised.      At this  state, it may be mentioned that there had been an agreement  recorded in  a settlement  dated 10.7.1957 the terms of  which were  binding upon  the deceased  and T.  K. Musaliar &  Sons Lid.  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 assessments 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.  s.  (2)  of  the Travancore Taxation in Income (Investigation Commission) Act 1124 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 terns 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.      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

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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, Special Circle, Ambala Cantt. & Anr.(1); Income-tax officer, Kolar Circle & Anr. v. Seghu Buchiah  Setty(2)  and  P.  M.  Bharucha).  v.  G.  S. Venkatesan, Income-tax  officer, Circle 1, Ward A, Bhavnagar (3). The  learned Judge also took the view that. the Income- tax dues  covered by  the above  mentioned  settlement  were realized by  virtue of  an order made under Section 3 of the opium &  Revenue Laws (Extension of application Act No.33 of 1950), and, the last mentioned      (1) [1961] 410 ITR 12.        (2) [1964] 52 I.T.R. 538.                   (3)[1969] 74 I.T.R. 513. 684 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 deceased, 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.      A Division  Bench of  the Kerala High Court, consisting of P.  T. Raman  Nayar, C.J.,  and K.  K. Mathew, J., agreed with the  views expressed by the learned single Judge on the questions  mentioned   above  except   as  regards   the  11 certificates which  were  issued  after  the  death  of  the assessee. It allowed the objections of the appellants to the extent that  it held  that the  claims sought to be enforced under the  attachment order  of 10.6.1968 (Ex. P.1) will not include the  arrears  of  Income-tax  mentioned  in  the  11 certificates issued  after the  death of T. K. Musaliar. The appellants have,  after grant  of certificates of fitness of the cases  for appeals to this Court, repeated before us the submissions mentioned above.      We may  point out  that the reliefs claimed in the Writ Petitions  were   writs  of   Certiorari  and  Mandamus  and Prohibition. It  is clear  to us,  after perusal  of the  so called "orders"  sought to  be quashed  that they  were only notices  of   commencement  of   recovery   proceedings   by attachment of certain properties. Final orders could only be passed after  the appellants have had their opportunities to object under  Rule 11  of the  2nd Schedule  of the 1961 Act because the  notices purport  to be only preliminary notices under Rule  48 of  the 2nd  Schedule to  the 1961 Act. These proceedings could  only be  quashed, even  at this stage, if they were entirely without jurisdiction. Otherwise, a prayer for quashing  proceedings would  obviously, be premature. No occasion for  the issue  of a  writ of  Mandamus  can  arise unless  the   applicants  show   non-compliance  with   some mandatory provision  and seek to get that provision enforced because some  obligation towards  them is not carried out by the authority  alleged to be flouting the law. The grievance

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of the appellants, however, is that the tax recovery officer had  no   jurisdiction  whatsoever  to  start  tax  recovery proceedings against  them. They  have, therefore,  asked for writs of Prohibition. The existence of an alternative remedy is not  generally a  bar to  the issuance  of such a writ or order. But,  in order  to substantiate  a right  to obtain a Writ of Prohibition from a High Court 11 or from this Court, an  applicant   has  to   demonstrate   total   absence   of jurisdiction to  proceed on  the  part  of  the  officer  or authority complained 685 against. It is not enough if a wrong Section or provision of law is cited in a notice or order if the power to proceed is actually there under another provision.      one  of   the  identically  similar  notices  to  which objection was  taken by  the appellants  may  be  reproduced here. It runs as follows:           "Form No. ITCP 16.      (See rule  48 of  the Second Schedule to the Income-tax Act, 1961)          order of Attachment of Immovable property.             office of the Tax Recovery officer,                                           Collector, Quilon.                                        Dated 10th May, 1958. To      Smt. Isha Beevi, on behalf of Minors      1. Umaiben Beevi, 2. Mymoon Beevi,      3. Mariam Beevi and 4. Safia Beevi,      Kantanchalil Veedu, Kannimelcherry,      Kilokoloor Quilon,      Whereas you,  the legal  representative of late Shri A. Thangal Kunju  Musaliar, have failed to pay Rs. 50,42,970.34 payable by  late Shri  A.  Thangal  Kunju  Musaliar,  Cashew Exporter, Quilon,  in respect  of certificates  mentioned in the attached statement, forwarded by the Income-tax officer, Special  Investigation  Circle,  Trivandrum  and  Income-tax officer, Quilon,  and the  interest  payable  under  Section 220(2)   of   the  Income-tax  Act,  1961,  for  the  period commencing immediately after the said date.      It is  ordered that you, said Isha Beevi be and you are hereby prohibited  and restrained until the further order of the  undersigned,   from  transferring   or   charging   the properties as  per attached  List in  any way  and that  all persons be,  and that they are hereby prohibited from taking any benefit under such transfer or charge.      Given under my hand and seal at Quilon on this 10th day of May, 1968.                                                         Sd/-                               Tax Recovery officer and Addl.                             Personal Assistant to Collector,                                                     Quilon".      As regards  the authority  of the  Additional  Personal Assistant to  the Collector,  Quilon, as  the  Tax  Recovery officer, no  objection appears  to have  been taken anywhere relating to  his appointment  in accordance  with the law as the Tax  Recovery officer.  The Division  Bench of  the High Court had  held that recovery of the dues for the years 1119 to 1125  ME could  not take  place under  the 1922 Act, and, therefore, no  proceedings for their recovery could be taken under 686 the provisions of the 1961 Act. Nevertheless, as proceedings could be  taken under  the Travancore Income-tax Act, it was argued before  it was  that the  "Peshkar" alone  would have been  competent   to  initiate  recovery  proceedings  under

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Section 66(3)  of  the  Travancore  Act.  The  corresponding officer, according to the appellants, was the Collector and, therefore, the  certificates could only be forwarded, it was submitted, to  the Collector of the District who alone could have initiated  the proceedings.  The Division  Bench  over- ruled this  contention on  the ground  that the  proviso  to Section 13(1)  of the  Indian Finance Act 1950 made it clear that the  authority constituted  under the Provisions of the Act of  1922, empowered  to proceed,  must be  determined by resorting to  the provisions of Section 8 (1) of the General Clauses Act which reads as follows:           "Where this  Act, or any Central Act or Regulation      made after  the commencement  of this  Act, repeals and      re-enacts, with or without modifications, any provision      of a  former enactment  then references  in  any  other      enactment or  in any  instrument to  the  provision  so      repealed shall,  unless a  different intention appears,      be construed  as references  to the  provision  so  re-      enacted". The 1922  Act was  repealed by  the 1961 Act. Hence, it held that Section 2(44) of the 1961 Act, read with Section 221 of that Act,  were sufficient to enable the Additional Personal Assistant to  the Collector  to proceed  as a  Tax  Recovery officer. Sec. 13, sub. s. (1) of the Finance Act, 1950 laid down:           "13(1) If immediately before the last day of April      1950, there  is in  force in  any part State other than      Jammu and  Kashmir or  in Manipur,  Tripura or  Vindhya      Pradesh or  in the  merged territory of Cooch-Behar any      law relating  to income-tax  or  super-tax  or  tax  on      profits of  business, that  law  shall  cease  to  have      effect except  for the purposes of the levy, assessment      and collection  of income-tax  and super-tax in respect      of any period not included in the previous year for the      purposes of  assessment under  the  Indian  Income-tax,      Act, 1922  (XI of 1922) for the year ending on the 31st      day of  March, 1951, or for any subsequent year, or, as      the case  may be, the levy assessment and collection of      the tax  on profits  of  business  for  any  chargeable      accounting period  ending on  or before the 31st day of      March, 1949;           Provided that  any reference in any such law to an      officer,  authority,   tribunal  or   Court  shall   be      construed as  a reference to the corresponding officer,      authority, tribunal  or Court  appointed or constituted      under the  said Act,  and if  any question arises as to      who such  corresponding officer  authority, tribunal or      Court appointed  or constituted under the said Act, and      if any  question arises  as to  who such  corresponding      officer, authority,  Tribunal or Court is, the decision      of the Central Government thereon shall be final": 687           Section 46 of the 1922 Act had also laid down:                "46(2) 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 :"      Section 2, sub. s. (44) of the Act of 1961 provides:           "(44)     ’Tax Recovery officer’ means-           (i)  A Collector or an additional Collector;           (ii) any such officer empowered to effect recovery                of arrears  of land  revenue or  other public

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              demand under any law relating to land revenue                or other  public demand  or the time being in                force in  the State  as may  be authorised by                the State  Government, by  general or special                notification  in  the  official  Gazette,  to                exercise  the   powers  of   a  Tax  Recovery                officer;           (iii)any Gazetted  officer of  the  Central  or  a                State Government who may be authorised by the                Central Government,  by  general  or  special                notification  in  the  official  Gazette,  to                exercise  the   powers  of   a  Tax  Recovery                officer;"      and, Section 222(1) of the 1961 Act lays down:      ‘    "222(1) When  an assessee  is  in  default  or  is      deemed to be in default in making a payment of tax, the      Income-tax Officer  may forward  to  the  Tax  Recovery      officer a  certificate under  his signature  specifying      the amount  of arrears  due from  the assessee, and the      Tax Recovery  officer on  receipt of  such certificate,      shall proceed  to recover from such assessee the amount      specified therein by one or more of the modes mentioned      below, in  accordance with  the rules  laid down in the      Second Schedule-           (a)  attachment and sale of the assessee’s movable                property;           (b)  attachment   and  sale   of  the   assessee’s                immovable  property;           (c)  arrest of  the assessee  and his detention in                prison;           (d)  appointing a  receiver for  the management of                the   assessee’s    movable   and   immovable                properties". Hence, even if the "Peshkar" was the competent officer under the Travancore  Income-tax Act, the duties of the Peshkar as the Recovery  officer  would,  by  operation  of  the  above mentioned provisions  of law. automatically devolve upon the Collector or an Additional Collector or upon such officer as may be empowered by the State Government 688 by a special or General notification in the official Gazette "to effect  recovery of  land revenue or other public demand under any  law relating  to land  revenue  or  other  public demand". The  appellants, not  having raised the question at any earlier  stage that the Additional Personal Assistant to the Collector was not an officer so authorised, cannot do so in appeal  to this  Court. However, we leave it open to them to take such an objection, which really raises a question of fact as  to whether the required notification was or was not made, before  the Tax  Recovery officer  himself. If such an objection had  been taken  there or  even in the High Court, the relevant  notification may  have been  produced. We  are unable to  see any flaw in the reasoning adopted by the High Court.      Another objection  as to  jurisdiction relates  to  the lumping together  of demands  which were  legal as  well  as those, which  could  not,  according  to  the  assessee,  be covered by  provisions of  law. The High Court had held that 11 out  of 22  certificates, which had been issued after the death of  T.K. Musaliar,  were not legal. To that extent the demands against  property attached  could be  said to be not covered by  required certificates. Nevertheless, neither had any property  been sold  nor any  action taken  against  the person of any of the appellants. The authorities relied upon by  the   appellants  related   only  to  either  sales  of,

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properties or  recovering amounts  which were  larger  than those which  were  legally  recoverable  or  arrest  of  the judgment debtor  in execution  of dues.  The cases before us are those of attachment only. If any part of the property is illegally or  unjustiably attached it does not really-affect the jurisdiction  of the  Tax Recovery officer to proceed to deal with  an objection  under Rule  11. The  High Court has held that the appellants can file all their objections under Rule 11 in Schedule 2 of the 1961 Act.      It has  also been  stated on  behalf of  the Department that it has no objection to the application of the procedure laid down  in the  Travancore Act  for recovery of such dues against the  appellants as are realisable from the assets of the deceased.  In view of this concession, it is unnecessary for us  to deal  with the  question whether  there  was  any additional  burden   or  disadvantage   imposed   upon   the appellants by the procedure in the 1961 Act. In view of this concession, the  Tax: Recovery  officer will  only  use  the procedure in  the Travancore Act so far as it is possible to apply it.      For the  reasons given  above, these appeals are hereby dismissed, but,  in the  circumstances of  these cases,  the parties will bear their own costs in this Court. P.B.R.                                    Appeals dismissed. 689