TMI Blog1971 (4) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... ee. The assessee did not pay the assessed tax within the period specified in section 220(1). He preferred an appeal against the order of assessment before the Appellate Assistant Commissioner under section 246 and later before the Income-tax Appellate Tribunal under section 25 3. On the prayer of the assessee, the Income-tax Officer allowed him, under section 220(3), to make an 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how that the assessment remains filial even during the pendency of appeal against it. Sub-section (6) of section 220 empowers the Income-tax Officer to treat the assessee as not being in default, if the assessee files an appeal before the Appellate Assistant Commissioner under section 246. If the assessment is taken as non-existent with the filing of the appeal, as contended, the 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 assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t itself. The first part relates to disputes as to correctness and the second part clearly refers to objection " on any ground " to the " certificate ". The Tax Recovery Officer and the Income-tax Appellate Tribunal both went wrong in entertaining the petition of objection and in making orders thereon in disregard of section 224. An assessment, once it is made and its amount remaining 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... room on Legal Maxims, 1939 edition, at page 452, writes : " The statute is to be construed, if possible, as to give sense and meaning to every part. It sometimes happens that in a statute, the language of which may fairly comprehend many different cases some only of those cases are expressly mentioned by way, of example merely, and not as excluding others of a similar nature. So, where 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 cours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the order proposed by my learned brother and also with the view expressed by his Lordship on the interpretation of section 265 of the Income-tax Act, 4961. But I will add a few words regarding the contentions raised before us. This rule was issued on 20th January, 1970, on an application made under article 227 of the Constitution by the Union of India represented by the Commissioner 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-com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Income-tax Act, 1961. III. For that in view of the provisions of section 220(6) and section 254 of the Income-tax Act, 1961, the reasoning of the learned Commissioner, Presidency Division, is not sustainable in law and as such the judgment is liable to be set aside." Mr. Balai Lal Pal appearing in support of the rule has assailed the view of law expressed by the Divisional Commissioner " that if a matter 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 envi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sked us to hold that before that stage assessment is not final. Next step of his reasoning was that at the stage the assessment is not final, it cannot be either payable or recoverable. In doing so, Mr. Mukherjee encountered the hurdle in the provision of section 220 which he was unable to ignore. To overcome, that hurdle, Mr. Mukherjee contended that section 220 is the general provision in respect of which 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 asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall not be payable. For making that deduction the maxim ezpressio unius est exclusio alterius is sought to be employed. The argument is not only by neglect of clear provisions in section 220 which is in Chapter XIV headed " Procedure of assessment ", but also by omission to remember that section 265 in Chapter XX is headed " Appeals and revision " in which chapter also sections 252 and 254 have been placed. The two 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 interpreta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the authority appealed against. That principle has received statutory recognition in the provision of Order 41, rule 5, Civil Procedure Code. The view that found favour with the Divisional Commissioner is in violation of that wholesome principle of law which instead of being weaker, in my view, is stronger in its application to taxation and revenue laws which are of special nature. The Supreme Court in the judgment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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