9911796707
TMI Blog1999 (12) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... rm to the declarant setting forth the particulars of the tax arrear and the sum payable after such determination towards full and final settlement of tax arrears. Sub-section (2) of section 90 provides that the declarant shall pay the sum determined by the designated authority within 30 days of the passing of an order by the designated authority and intimate the fact of such payment to the designated authority along with proof thereof and the designated authority shall thereupon issue the certificate to the declarant. Sub-section (3) of section 90 provides that every order passed under sub-section (1), determining the sum payable under this scheme, shall be conclusive as to the matters stated therein and no matter covered by such order shall be reopened in any proceedings. In accordance with the provisions of the scheme and the rules made thereunder, the present petitioner filed a declaration in respect of the arrears of his income-tax dues for the assessment years 1982-83, 1983-84, 1984-85 and 1995-96. The declaration is stated to be filed on December 28, 1998. The designated authority, i.e., the Commissioner of Income-tax, Allahabad, determined the amount payable by the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime prescribed, i.e., 30 days of the receipt of the intimation, and that the denial of the certificate is illegal. It is claimed that the law required the deposit to be made within 30 days and this period could not be curtailed by the designated authority by delay in the service of the order and the action of the designated authority is illegal . In the counter affidavit reliance has been placed on the provisions of the scheme and it is stated that the petitioner was statutorily required to deposit the arrears of tax within 30 days of the date on which the determination was made and the certificate of intimation under section 90(1) was signed by the designated authority. It is also stated that the intimation was served on the petitioner within time and he could have deposited the money within 30 days, i.e., by March 25, 1999. We have heard Sri Rajesh Kumar, learned counsel for the petitioner, and Sri A. N. Mahajan, learned standing counsel for the respondent. A perusal of the provisions of the scheme would show that section 90(1) contemplates a determination of the amount of tax dues payable by the declarant and an intimation of such determination in the form of the certificate. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out the meaning of the phrase "passing of an order" we have to keep in mind the nature of the order. "Order" means a direction or a command. It is particularly so when the person ordered is required to comply with the "order", i.e., the command or direction. An order which is not communicated to the person who is obliged to comply with or execute the order, is no order in the eyes of law and becomes an order only when it is communicated to such person. This is clear from the nature of the order contemplated by sub-section (2) of section 90 as well as the use of the word "passing" in conjunction with the "order". The word "pass", inter alia, means to put in circulation, to transfer from one person to another. Therefore, the use of the word "passing" makes the intention clear that the order has to be communicated to the declarant and the order would be deemed to have been passed only when it is communicated to the declarant. As stated above, the order passed under sub-section (2) of section 90 requires compliance from the declarant and the non-compliance affects adversely his statutory right under the scheme and puts his money in jeopardy. The provisions of the Act and the Rules mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic. Therefore, a notification has been held to be "published" when it is made available to the public. It was so held by the Supreme Court in Collector of Central Excise v. New Tobacco Co., AIR 1998 SC 668. The Supreme Court referred to its earlier decision in Harla v. State of Rajasthan, AIR 1951 SC 467 ; [1952] SCR 110. In that case a Council of Ministers, appointed to look after the Government and Administration of Jaipur State during the Maharaja's minority, passed a resolution which purported to enact the Jaipur Opium Act and the question which had arisen for consideration of the court was whether the mere passing of the resolution without promulgation or publication in the Gazette or other means as known to the public was sufficient to make it law. The Supreme Court held that the resolution of the Council of Ministers without publication was not sufficient to make the law operative. Similar is the position in respect of the statutory orders requiring compliance from a subject. The mere preparing of the draft of an order and signing it in the authority's own office would not in our view amount to passing of an order. The order would legally stand passed when it is passed ove ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
