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TMI Blog1969 (6) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... the amounts due from them were also issued under section 29 of that Act and on their committing default in the payment of the amounts, certificates were issued in all these cases under section 222 of the Income-tax Act, 1961, which will be referred to as the new Act for the recovery of the amounts due. It was in this situation that the Tax Recovery Officer commenced proceedings for the recovery of these amounts under section 222 and we are asked by the petitioners to quash the notices of demand issued by him and to forbid the recovery. Mr. Srinivasan appearing for the petitioners contends that the recovery proceeding commenced by the Tax Recovery Officer were beyond his competence, since they were not preceded by notices of demand under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintained that the Tax Recovery Officer to whom certificates were issued under section 222 of the new Act in all these cases, acquired no power to make the recovery since the certificates issued under section 222 of the new Act were preceded by further notices of demand under section 156 of new Act. While this branch of the argument which rests again on section 156 of the new Act is advanced in all these nine writ petitions, the plea of limitation is urged in only two of them, namely, Writ Petitions Nos. 478 and 480 of 1967. It was said that, since no certificate could be issued under section 222 of the new Act unless an assessee is in default or is deemed to be in default in making a payment of tax and since an assessee could be deemed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee is deemed to be in default under the new Act only when there is a notice under section 156 of the new Act and there is non-payment within the period of thirty-five days to which section 220(1) refers. Although the new Act, like the old Act, does not explain when an assessee is in default as contrasted with an assessee who is deemed to be in default, it is, we think, clear that both under the old Act as well as under the new, there can be no default unless there is a notice of demand either under section 29 of the old Act or under section 156 of the new Act, as the case may be, and there is no payment, within the prescribed time. But, in the case of all the assessees before us, they were clearly in default under the provisions of the ol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old Act, has, in our opinion, the same status as a default arising out of nonpayment in compliance with the demand under section 156 of the new Act. The other reason which impels our view that the certificates under section 222 of the new Act were good certificates rests upon the clear provision of section 297(2)(j) of the new Act, which reads : " 297. (2)(j) Any sum payable by way of income-tax, super-tax, interest, penalty or otherwise under the repealed Act may be recovered under this Act, but without prejudice to any action already taken for the recovery of such sum under the repealed Act. " The meaning of this clause is that all sums payable under the old Act could be recovered under the new Act and such recovery under the new Act i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Officer in all the cases before us, the person who made the impugned demands had not become a Tax Recovery Officer since he was appointed as such only on May 25, 1966, by which time all the certificates been forwarded. So, it was contended that the Collector of the concerned district to whom the certificates were forwarded and who was a Tax Recovery Officer as defined by section 2(44)(i), was the person who could make the recovery and not the Tax Recovery Officer subsequently appointed. Mr. Rajasekhara Murthy appearing for the department made a submission that this contention in that form is not raised in any of the writ petitions and that we should not allow the petitioners to raise that new matter for the first time during the argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount specified in the certificate. So, a recovery proceeding commenced by one Tax Recovery Officer named in the certificate could, we think, be continued by another Tax Recovery Officer of the same area and a new certificate under section 222 of the new Act with respect to such recovery is, in our opinion, scarcely necessary. We are, therefore, of the opinion that the Tax Recovery Officer who made the impugned demands did not stand denuded of his power to make the recovery merely for the reason that when the certificates were forwarded, they were forwarded to the concerned Deputy Commissioners of the district who were then the only Tax Recovery Officers. Now, what survives for discussion is the plea of limitation. This plea, as we hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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