TMI Blog1957 (3) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... hapuram on October 26, 1953. On July 17, 1956, the Special Deputy Tahsildar, (second respondent) a revenue subordinate of the Collector, issued notices to the petitioner and his brother, informing them that if the amount was not paid proceedings could be taken under the Revenue Recovery Act. The petitioner pleaded that no proceedings could be taken against him under section 46(2) of the Income-tax Act, which provided for the recovery of the tax as if it were an arrear of land revenue by recourse to the Revenue Recovery Act, and has applied for a writ of prohibition to restrain the authorities from applying the provisions of the Revenue Recovery Act to him. It should be recorded that the validity of the assessment to income-tax was not challenged in these proceedings. The amount ultimately demanded of the petitioner, the payment of which was required by the notice dated July 17,1956, included a sum of ₹ 1,000, levied apparently under section 46(1) of the Act as penalty for the nonpayment of the tax due. The validity of the order imposing that penalty was not challenged either in these proceedings. The limited attack was on the certificate issued under section 46(2) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, who comes within the scope of either section 24B(2) or section 24B(3) of the Act, in the category of persons referred to in section 29 of the Act as 'other person liable to pay such tax' as distinct from the 'assessee'. For the purpose of section 29, therefore, it is the deceased that would be the assessee, and the executor, administrator or other legal representative, in whose presence the income of the deceased is assessed either under section 24B(2) or under section 24B(3), would be not the assessee but merely a person liable to pay the assessed tax . In construing the term assessee in default in section 46(1) of the Act we pointed out at page 710: To establish 'default' in the payment of the assessed tax, within the meaning of section 45, two conditions at least have to be specified: (1) failure to pay the amount specified in the notice of demand issued under section 29, and (2) that failure must be that of an assessee...Obviously, when section 46(1) refers to 'an assessee in default' it is the assessee who is in default within the meaning of section 45 that is meant. A penalty can be imposed under section 46(1) only on such an asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply. As we pointed out in Alfred's case (supra), to establish that an assessee is in default within the meaning of sections 45 and 46(1) what has to be established is (1) failure to pay the amounts specified in the notice of demand issued under section 29, and (2) that failure must be that of an assessee. It is the same set of conditions that has to be satisfied to establish that arrears are due from an assessee within the meaning of section 46(2). Arrears is not a term of art, as explained in Burrows Words and Phrases, Volume 1, page 231. There must be a legal obligation to pay the amount which has been ascertained or is easily ascertainable, for example, ex-jade the document that evidences that obligation. If that amount is not paid on or before the date on which the payment fell due, that amount is in arrears as that expression is normally understood. In other words, there must be a legal obligation and a default in the performance of that obligation before any arrears can emerge. Analogous to section 46(1), section 46(2) requires two conditions to be satisfied, (1) the amount must be in arrear, and (2) those arrears must be due from an assessee. In the case of the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the possession of that legal representative, for the imposition of any additional burden on that legal representative there must be statutory provision, either in express terms or by necessary intendment. We are unable to discover any such provision in section 46(2) any more than in section 46(1). To include a legal representative in such cases within the scope of the statutory expression assessee in section 46(2) would necessarily involve an imposition of vicarious liability for which we can find no statutory sanction. As we said, section 46(2) itself does not in any way limit the liability of the assessee from whom the arrears are due. If the expression assessee in section 46(2) were to include the legal representative of a deceased assessee whose income was assessed under section 24B(2), on a certificate issued under section 46(2) all the assets of that legal representative, his own as well as those of his deceased predecessor in interest, could well be proceeded against. We emphasise this feature only to show that the Legislature could not have intended to impose and did not impose such an unlimited liability, inclusive of what would be a vicarious liability, on a lega ..... X X X X Extracts X X X X X X X X Extracts X X X X
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