TMI Blog1987 (9) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Commissioner directed, the defaulter to pay at least 50% of the demand to avoid the rigour of detention under the proviso to rule 76 and that instead of making payment, he has approached this hon'ble court. Since the Commissioner has taken such a view as is evident from the counter-affidavit, learned counsel appearing for the petitioner submits that exhibit P-4 order if challenged in appeal as contemplated by rule 86(1)(c) will be an empty formality. On this basis, the petitioner challenges the order passed by the Tax Recovery Officer. It is the admitted case that tax for the assessment years 1976-77 and 1977-78 is outstanding from the petitioner. The amount of tax for the said period comes to Rs. 2,36,448. Since the petitioner d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those devolved on him on the death of his father, Sri Columbus, in 1982. He led the evidence on the basis of the wealth-tax records of the defaulter and his late father. The appeal is by the Department. The defaulter will not get any reduction on conclusion of appeal. On the contrary, there is every chance for the tax demands to go up when the appeals reach a finality. From these arguments, it is evident that there is a prima facie case against the defaulter that he has neglected and refused to pay the tax demands certified against him. Even at this stage, the defaulter has not offered any worthwhile scheme to clear his tax dues. Therefore, on the basis of the evidence, led by the Income-tax Officer, I am satisfied that the ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d detained in civil prison. Consequently, warrant was issued to Sri A. D. Jose, Inspector of Income-tax. He effected the arrest of the petitioner. Later, he was released. From the above circumstances which are borne out from the file, 1 find it difficult to hold that the Tax Recovery Officer did not conduct an enquiry contemplated by rule 74 of Schedule II to the Income-tax Act before ordering the arrest of the petitioner. Rules 73 to 76 of Schedule II to the Income-tax Act are the relevant rules with which I am concerned in this case. Before ordering the arrest and detention of the defaulter, the Tax Recovery Officer has to issue notice under rule 73(1) calling upon the defaulter to show cause why he should not be committed to civil pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r challenges the enquiry on the ground that the entire proceedings were completed in one day. According to counsel, the enquiry should have taken more time and the defaulter should have been given sufficient number of days to let in evidence to rebut the case made out by the Income-tax Officer. Since such an opportunity was not afforded, learned counsel submits that there was no proper enquiry under rule 74. I find it difficult to accept this argument. The Tax Recovery Officer can conduct the enquiry and complete the same in one day itself. The only requirement is that the officer should afford sufficient opportunity to the defaulter to rebut the evidence of the Income-tax Officer. When the petitioner appeared in pursuance of the notice und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontained in the counter-affidavit. " The Commissioner directed the defaulter to pay at least 50% of the demand to avoid the rigour of detention under the proviso to rule 76. " According to counsel appearing for the petitioner, this shows that the Commissioner has taken a decision on the issue and any appeal will be an empty formality. I cannot agree with this argument. If the petitioner had filed the statutory appeal, it would have been disposed of by the Commissioner in a judicial manner. The failure of the petitioner to resort to the statutory appeal before approaching this court under article 226 of the Constitution is a matter to be taken note of by this court. In view of what has been stated above, I find no merit in this original p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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