TMI Blog1986 (11) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... te party No. 1: 1,98,388 Opposite party No. 2: 1,75,463 Opposite party No. 3: 3,14,393 -------------- 6,88,244 -------------- The tax not having been paid, the petitioner referred the matter to the Tax Recovery Officer, Cuttack, for realisation of the arrear dues. Opposite parties Nos. 1, 2 and 3 (hereinafter referred to as the " opposite parties ") were entitled to receive compensation on account of land acquisition to the tune of Rs.3,08,533.10. Therefore, the petitioner sent letter dated November 1, 1985, under section 226(3) of the Act attaching a sum of Rs. 2,33,912 payable to the aforesaid opposite parties and lying in the hands of the opposite party No. 4, the Collector, Cuttack. Subsequently, the entire compensation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued for the amounts claimed as arrears of income-tax dues, penalty and interest, reduction of assessment in appeal giving substantial relief of Rs. 20,000 in favour of the opposite parties was not taken into consideration and the documents produced by the petitioner did not prove that the total outstanding arrears was to the tune of Rs. 6,88,244. Sections 220 to 232 of the Act make provision for collection and recovery of arrears of tax. Under section 222, when an assessee is 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. The Tax Recovery Officer on receipt of such certificate shall proceed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Officer, section 226 provides other modes of recovery which may be adopted concurrently with proceedings under section 222 or, if it is, without any proceeding being taken under that section. This view is supported by a decision in Mohamedaly Sarafaly Co. v. ITO [1968] 68 ITR 128 (Mad). In the present case, the Income-tax Officer has taken recourse to both section 222 as well as section 226(4) of the Act concurrently which, as referred to above, is permissible in law. Therefore, no legal objection can be taken to the effect that having taken recourse to section 222, the Income-tax Officer should not have taken recourse to the other mode of recovery provided in section 226(4). Mr. R. C. Mohanty, learned counsel appearing for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such recoveries, to the extent permitted by the Act, the jurisdiction of the civil court has been excluded save where fraud is alleged. Advantage can also be taken of the decision of this court in the case of Gaurishankar v. Certificate Officer [1971] 82 ITR 955 which laid down that if a specific mode of recovery is provided by the statute in this case the Second Schedule-for realisation of arrear tax demand, it is that mode alone through which the recovery of taxes is to be made. It is needless to point out that paragraph 9 of the Second Schedule is akin to section 47 of the Code. Therefore, if the opposite parties have a real point of objection that notices of demand were not served on them, they should have approached the Tax Recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Union of India v. Tata Mills Ltd. [1977] 110 ITR 135 (Cal) it was held that under the general law, the partners of a firm are liable for the debts and liabilities of the firm. They are jointly and severally liable for the same. Tax and penalties due by the firm are also such dues for which the partners are so liable. In this case, the arrears of tax demand is in respect of opposite parties Nos. 1 and 2 individually as also ill respect of the partnership firm constituted by them. Therefore, they are jointly and severally liable to pay the arrears of tax of the partnership firm. Mr. R. C. Mohanty urged that although the civil court cannot, according to law, question the assessment of tax, it can examine the quantum of the arrears of tax. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 226(4) is made before it by a statutory authority, such as, an Income-tax Officer. Sub-section (1) read with sub-section (4) of section 226, on a bare interpretation, makes It clear that on a petition by the Income-tax Officer, the arrears of tax can be recovered. In other words, if any money is in deposit before civil court, the same can be recovered by the Income-tax Officer if an application is made to that court under sub-section (4) No discretion has been given in the statute to the civil court to make an investigation as to whether the assessment of tax is according to law, the quantum of the tax, whether the tax is in arrears or not, whether a notice of demand has been served or not or whether the tax recovery proceeding is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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