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TMI Blog1971 (4) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... n initial payment towards the assessed tax and to pay the balance in a number of instalments There was default by him in the matter of compliance, with that order. The Income-tax Officer then took steps for attachment and sale of the assessee's immovable properties.Thereupon, the assessee filed a petition of objection under rule 9 of Schedule 11 of the Act before the Tax Recovery Officer praying for postpement of further proceeding in the certificate case till the disposal of his appeal before the Income-tax Appellate Tribunal and alternatively for withdrawal of the notice issued by him for settling the proclamation of sale of his immovable properties. This petition was opposed by the Union of India and was rejected by the Tax Recovery Officer by his order dated July 11, 1969. Against that order, the assessee filed an appeal before the Revenue Divisional Commissioner under rule 86 of Schedule II of the Act. The Revenue Divisional Commissioner allowed the appeal by his order dated bctober 14, 1969, holding that the tax was not recoverable by summary certificate procedure during the pendency of the appeal by the assessee before the Income-tax Appellate Tribunal. It is this order whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above provision becomes meaningless. It has been decided by the Supreme Court in Income-tax Officer, Cannnore v. M. K. Mohammed Kunhi , that the Appellate Assistant Commissioner and the Income-tax Appellate Tribunal have power to stay proceedings before the Certificate Officer. Sub-section (4) of section 225 provides for amendment of the certificate or withdrawal of it in accordance with the order in the appeal against the assessment. Provision has also been made in section 240 for " refund " as may be due to the assessee on the result of any order passed in appeals under this Act. The assessee himself applied for stay more than once before the Tax Recovery Officer and even in his petition of objection under rule 9 of Schedule II. It is clear from the various provisions referred to above that the assessment remains final even during the pendency of the appeal. This is to be noted that there is no provision in the Act for revival " of the assessment after the disposal of the appeals. Section 231 of the Act lays down periods for commencement of the proceeding for recovery of assessed amount. The assessment does not cease to exist or to be final with the filing of the appeals. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maining unpaid, has been made recoverable by various modes: see sections 222, 226, 227 and 232. There is nothing in the Act to show that the assessed sum becomes not recoverable during the pendency of the appeals if filed or with the filing of the appeals. Section 254(4) is that the " orders " of the Income tax Appellate Tribunal becomes " final " save as provided under section 256. This finality about the " orders " of the appellate authority in section 254(4) is that those cannot be further challenged by any proceeding. It says nothing about the assessment becoming " final " then as contended. An assessment does not lose its " finality " merely because of provisions in the Act to challenge its correctness by way of appeals. A sum cannot be recovered if not payable. A sum payable is recover able if there is no order staying recovery. A sum, assessed and determined as payable by the assessee on the basis of the assessment, becomes recover able from that time. Recoverability of a tax assessed and determined, has no connection with the appeals, permitted by the Act, against the assessment. The learned advocate, appearing for the opposite party, next repeated the contention that was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the words used by the legislature are general, it shall extend to other persons and things besides those actually named, and, consequently, in such cases, the ordinary rule of con struction cannot properly apply." The maxim is not of universal application. Crawford in his book The Construction Satutes, 1940 edition, at pages 335-336, has pointed out that this maxin does net apply to matters " where it clearly appears that something was expressly mentioned for another reason or merely because of caution " and " this maxim, or general principle of construction, as must be apparent, is based upon if he probable intention of the legislature. Hence, where that intention clearly reveals that the law-makers did not mean that the express mention of one thing should operate to exclude all others, of course, the principle is not applicable. Consequently, when the statutory language is plain and the meaning is clear, there can be no implied exclusions. In other words, the principle is to be used as a means of ascertaining the legislature's intent where it is doubtful and not as a means of defeating the apparent intent of the legislature ". Maxwell on the Interpretaton of Statutes, elev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Income-tax, West Bengal III. It is directed against an order of the Commissioner of Presidency Division, dated 14th October, 1969, passed in Case No. 68 of 1969/70 by which the order of the Tax Recovery Officer dated 1lth July, 1969, in Certificate Case No. 659-IT/A/68-69 was set aside. The rule has been opposed on behalf of the assessee, Messrs. B. C. Nawn and Brothers Private Ltd. It raises a question of jurisdiction based on provisions in several sections of the Income-tax Act and particularly section 265 of that Act. Events that lead to the case being brought up to us by application under article 227 of the Constitution may be briefly recounted. Events : On 9th March, 1967, the Income-tax Officer, M-Ward, Companies District IV, Calcutta, assessed the total income of the assessee-company at Rs. 2,48,658 and issued a demand notice demanding a tax of Rs. 1,32,340. On 13th April, 1967, the assessee-company filed an appeal under section 246 of the Income-tax Act, 1961, before the Appellate Assistant Commissioner. On 18th March, 1968, the said Income-tax Officer forwarded a certificate under section 222(1) of the said Act to recover the said tax by certificate procedure. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter were pending before a Tribunal, it cannot be recovered by summary certificate procedure ". Mr. Pal points out that by the provisions in the Act, after tax has been assessed under section 144, a notice of demand is issued under section 156. Section 220 provides that tax is payable after 35 days from notice of demand and section 222 provides the mode of recovery by summary certificate proceedings. By referring to several sections in several Chapters of the Act, Mr. Pal contended that a definite scheme of legislative intent clearly appears in the process of assessment that the tax assessed shall be payable on notice of demand being served on the assessee and when the defaulter is made to pay the tax assessed, it shall be recoverable by recourse to one or the other methods envisaged in section 222. That recoverability is independent of right of appeals provided in the Act, though in section 254 the Act provides that the order of the Appeliate Tribunal shall be final. That provision of finality has not been made either at the stage of assessment by the Income-tax Officer or at the stage of first appeal to the Appellate Assistant Commissioner. According to Mr. Pals contention, final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 265 is the special provision which will override the other then he sought to support the view of the Divisional Commissioner by invoking the maxim expressio unius est exclusio after. I am clearly of the view that the whole process of reasoning and ever particular step in that process employed by Mr. Mukherjee are fallacious and his whole argument is based on profound misconception of the basic scheme of that Act, and misapprehension of meaning, purpose and effect of several sections in that Act, on which he sought to rely. It will be burdening this judgment with incomprehensible irrelevancies to try o discuss all that Mr. Mukherjee said before us. Mr. Mukherjee's initial assumption, which found favour with the Divisional Commissioner, that remverability of tax assessed is dependent on the finality of the order of the Appellate Tribunal has no warrant in any provision of the Act and is erroneous. That assumption is contraryto the definite scheme of the Act. Assessment of tax made under sections 143 and 144 of the Act is payable when notice of demand is served under section 156 and is recoverable under section 220. No doubt assessment made by the Income-tax Officer may be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo chapters are not on the same subject and there is no relation between sections 222 and section 265 of the nature of the former being general provision and the latter special provision. Mr. Mukherjee omitted to notice that in Chapter XX, after divisions A. B, C, D and E, only in group F under the heading " General". section 265 occurs. Yet Mr. Mukherjee wanted us to read that section as a special provision to override section 220 in Chapter XIV of the Act. The contention is devoid of reason and must fail. Regarding applicability and use of the maxim ezpressio unius est ezclusio alterims, I fully agree with the views of my learned brother that if not used with caution the maxim which is certainly a good and dependable servant to aid proper understanding and interpretation of the statute, may turn out to be a misleading master, as the reputed scholars, Broom and Crawford, have pointed out in their famous treatises on maxims referred to by my Lord. In the present case it has no application at all. Its primary use is when a positive and enabling or disabling provision in a statute expressly mentions one or more, but does not mention some others, then those others not mentioned are t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above referred to has observed : " A certain apprehension may legitimately arise in the minds of the authorities administering the Act that if the Appellate Tribunal proceeds to stay recovery of taxes or penalties payable by or imposed on the assessees as a matter of course the revenue will be put to great loss because of the inordinate delay in the disposal of appeals by the Appellate Tribunal. It is needless to point out that the power of stay by the Tribunal is not likely to be exercised in a routine way or as a matter of course in view of the special nature of taxation and revenue laws. It will only be when a strong prima facie case is made out that the Tribunal will consider whether to stay the recovery proceedings and on what conditions and the stay will be granted in most deserving and appropriate cases where the Tribunal is satisfied that the entire purpose of the appeal will be frustrated or rendered nugatory by allowing the recovery proceedings to continue during the pendency of the appeal." Conversely, any apprehension that may arise in the mind of the assessee also is quelled by judicious exercise of the power of the Appellate Tribunal dealt with by the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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