TMI Blog1980 (4) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... rtificate Officer extended the time for the submission of the report by the, ITO by three months. The ITO did not, however, submit any report. Ultimately, on September 20, 1961, the Certificate Officer allowed the said claim petitions of the respondents and released the said properties. After such release, the respondents sold the properties on October 12, 1961, and May 2, 1962. On March 29, 1962, the respondents purchased both the ownership right and the leasehold interest of premises No. 50A, Phears Lane, Calcutta. It appears that on September 30, 1962, another sale proclamation was issued by the Certificate Officer and Additional District Magistrate, 24-Parganas, under r. 46 of the Bengal Public Demands Recovery Act, 1913, for the sale of the said premises No. 50A, Phears Lane, Calcutta, and two other premises being premises Nos. 21 and 22, Colootala Street, Calcutta, for the recovery of the certificate debt of the said certificate-debtor. Again, the respondents filed three petitions of objections under the Bengal Public Demands Recovery Act claiming the said three properties to belong to them and not to the certificate-debtor. When these claim cases were pending, on August 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le nisi. The learned judge took the view that as the proceedings were under the Bengal Public Demands Recovery Act and not under, the I.T. Act, 1961, which came into force during the pendency of the said proceedings, an appeal lay to the Presidency Divisional Commissioner under the Bengal Public Demands Recovery Act. In that view of the matter, the learned judge quashed the impugned orders and directed the Presidency Divisional commissioner to hear the appeals preferred by the respondents on merits and in accordance with law. Hence this appeal. In view of the provision of s. 46(2) of the Indian I.T. Act, 1922, herein after referred to as " the old Act ", the certificate proceedings were started under the provisions of the Bengal Public Demands Recovery Act, 1913. It is not disputed that appeals lay to the Presidency Divisional Commissioner under the Bengal Public Demands Recovery Act. It is not also disputed that the Certificate, Officer and Additional District Magistrate was also the Tax Recovery Officer. According to the revenue, the order dated January 9, 1970, having been passed by the TRO under the I.T. Act, 1961, hereinafter referred to as " the new Act ", and the new Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed." There can be no doubt that s. 6 will not apply if a different intention appears in the repealing Act. It is contended by Mr. Balai Pal, learned advocate appearing on behalf of the revenue, that a different intention appears from cl. (j) of sub-s. (2) of s. 297 of the new Act. Clause (j) provides as follows : " (2). Notwithstanding the repeal of the Indian Income-tax Act, 1922 (XI of 1922), (hereinafter referred to as the repealed Act)- . . ...... (j) any sum payable by way of income-tax, super-tax, interest, penalty or otherwise under the repealed Act may be recovered under this Act, but without prejudice to any action already taken for the recovery of such sum under the repealed Act. " The provision of s. 297(2)(j) permits the recovery under the new Act of income-tax, super-tax, etc., payable under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the procedure of the new Act would apply mutatis mutandis to cases contemplated by s. 297(2)(j) of the new Act. In a subsequent decision of the Supreme Court in T. S. Baliah v. T. S. Rangachari [1969] 72 ITR 787, the Supreme Court has in considering the applicability of the provisions of s. 6(e) of the General Clauses Act to the institution of a prosecution under the old Act, observed that whenever there is a repeal of an enactment, the consequences laid down in s. 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears in the repealing statute. In the case of a simple repeal there is, scarcely any room for the expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject the court would undoubtedly have to look to the provisions, of the now Act, but only for the purpose of determining whether they indicate a different intention. The question is not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. Section 6 of the General Clauses Act, therefore, will be applicable unless the new legislation manifests an intentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should not prejudice any action that has been taken under the old Act. The proceeding was started under the Public Demands Recovery Act read with s. 46(2) of the old Act Take a case where during the pendency of a petition of objection under s. 9 of the Public Demands Recovery Act, the new Act comes into force. The question is whether the procedure laid down under the new Act can be followed. If the procedure under the new Act is followed in that case, the TRO will not be entitled to dispose of any application under s. 9 of the Public Demands Recovery Act, for, the new Act has not made any provision for the filing of a petition of objection. The introduction of the procedure under the new Act into the pending proceeding will undoubtedly prejudice the action already taken, In the circumstances, in view of s. 297(2)(j), such procedure cannot be adopted. But when a certificate has been filed under the Bengal Public Demands Recovery Act, at that stage the procedure under the new Act can be adopted, for such adoption will not prejudice the action already taken. In Segu Butchaiak Setty v. ITO [1970] 76 ITR 607 (Mys), it has been held by the Supreme Court that s. 297(2)(j) of the new Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) or, for the matter of that, s. 297(2)(j) has not made any provision either expressly or by necessary implication for the transformation of the proceedings under the Bengal Public Demands Recovery Act into proceedings under the new Act. Although the claim petition of the respondents was sought to be disposed of by the TRO, he was really disposing of the same as a certificate officer under the Public Demands Recovery Act. As has been noticed earlier, the certificate officer and the Additional District Magistrate was also the Tax Recovery Officer. It will not, in our opinion, make any difference if the officer who disposed of the said claim petition described himself as the Tax Recovery Officer. We may consider the question from another point of view. An appeal lay to the Presidency Divisional Commissioner from the order passed by the certificate officer in view of s. 51 of the Bengal Public Demands Recovery Act. When the claim petitions were filed, a right of appeal accrued to the respondents. It is not disputed that a right of appeal is a substantive right and unless it is taken away, either expressly or by necessary implication by a subsequent enactment, it subsists. There is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
