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PETITIONER: RAJA YUVRAJ DUTT SINGH

       Vs.

RESPONDENT: THE DEPUTY COMMISSIONER, KHERI ORS.

DATE OF JUDGMENT: 05/05/1970

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHAH, J.C. HEGDE, K.S.

CITATION:  1970 AIR 1360            1971 SCR  (1) 530  1970 SCC  (2) 162

ACT: U.P. Agricultural Income-tax Act (U.P. 3 of 1949) s.  32(2)- Proceeding for recovery of arrears-When commence.

HEADNOTE: Section 32(2) of the U.P. Agricultural Income-tax Act,  1949 provides that no proceeding for recovery of any sum  payable under  the Act, shall be commenced after the  expiration  of one  year from the date on which the last  instalment  falls due. The  assessee was assessed to agricultural income-tax  under Act,  for  different  assessment  years.   As  the  assessee defaulted  in  the  payments the  assessing  authority  made orders  directing  the  Tahsildar to  realise  the  sums  as arrears  of land revenue.  All these orders except one  were made  within a year of the last date for the payment of  the instalments  due.   But the Tahsildar  issued  the  recovery orders after the expiry of one year of the last date for the payment  of the instalments due.  On the  question,  whether the  proceedings  for  recovery were barred  by  time,  this Court, HELD  : The proceedings were not barred by time  except  the one in which the order of the assessing authority  directing the  Collector to realise the sum was made beyond  one  year from the date the last instalment fell due. The proceedings for recovery commence with the making of the request  by  the assessing authority to  the  Collector  for recovery of the arrears as an arrear of land revenue’  There is hardly any difference between the provisions of s. 32  of the  Act  and the corresponding provisions of s. 46  of  the Income-tax  Act,  1922.   Both  these  statutes  relate   to taxation  of  income and the provisions in question  are  in pari materia although the words employed may not be  exactly the same. [533 D] Lal Bhan Pratap Narain Bahadur Pal v. State of Uttar Pradesh and,  Another; (1962) Vol. 60 All.  L.J. 358; Kishorilal  v. Triloki Nath, (1962) Vol. 60 All.  L.J. 360, distinguished.

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JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos.  743  and 744 of 1968.  Appeals from the judgment and order dated August 8, 1967 of the  Allahabad High Court, Lucknow Bench in  Special  Appeal No. 84 of 1965. S.   C.  Manchanda,  N. N. Sharma, and C. P.  Lal,  for  the appellant  (in C.A. No. 743 of 1968) and the respondent  (in C.A. No. 744 of 1968). N.   D.  Karkhanis and O. P. Rana, for the  respondents  (in C.A.  No. 743 of 1968) and the appellants (in C.A.. No,  744 of 1968). 531 The Judgment of the Court was delivered by Grover,  J. These cross appeals arise out of a  judgment  of the Division Bench of the Allahabad High Court by which  the petitions  under Art. 226 of the Constitution filed  by  the assessee were partly allowed. The  assessee was assessed to agricultural income tax  under the  U.P.  Agricultural  Income-tax Act,  Act  III  of  1949 hereinafter  referred  to as the "Act" for  the  years  1360 Fasli  (July 1, 1952 to June 30, 1953), 1361 Fasli (July  1, 1953 to June 30, 1954), 1362 Fasli (July 1, 1954 to June 30, 1955),  1363  Fasli (July 1, 1955 to June  30,  1956).   The assessment orders relating-to the first two years were  made on November 23, 1959 and in respect of the subsequent  years they  were  made  on October 21, 1959 and  August  13,  1957 respectively.   It appears that certain penalties were  also imposed.   As  the assessee made default in payment  of  the amount  of tax and penalty, proceedings were  taken  against him  for the realization thereof and attachment orders  were issued by the Tehsildar on March 10, 1962.  On May 21,  1962 the  appellant  filed  a writ petition  in  the  High  Court praying  that all coercive processes for the realization  of the  taxes  and  the penalties including the  sale  of  land attached  be quashed.  A learned’ single judge  allowed  the petitions and granted the relief claimed with regard to  the assessments  relating  to all the years on the  ground  that proceedings  for recovery had not commenced within the  time prescribed   by  the  Act.   The  departmental   authorities preferred  a Special Appeal to a Division Bench  and  during the  pendency  of the appeal sought  to  produce  additional evidence  to show that the proceedings relating to  recovery had  commenced  within time.  The  Division  Bench  admitted additional evidence and after taking that into consideration held  that  proceedings were not barred in  respect  of  the demand  relating  to  the years 1360F  to  1362F.   It  was, however,  found  that proceedings for recovery  of  tax  and penalty  for  the  year  1363F were  barred  by  time.   The assessee  as  also  the  Deputy  Commissioner,  Kheri,  have preferred  appeals challenging that part of the order  which has gone against them. Section  30  of the Act provides that tax for  any  year  is payable in two equal instalments.  The first instalment  has to be paid within one month of the service of the notice  of demand  or  communication  of  the  order  and  the   second instalment within six months from the due date of the  first instalment.  Section 32 is in the following terms               "(1)  The Collector may, on the motion of  the               assessing authority recover any sum imposed by               way   of  penalty  under  the  provisions   of               sections 17, 31, 37,               5 32               or,  where  any  assessee is  in  default  the               amount assessed as agricultural income-tax, as

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             if it were an arrear of land revenue.               (2)   No  proceeding for the recovery  of  any               sum payable under this Act shall be  commenced               after the expiration of one year from the date               on  which  the  last  instalment  fixed  under               section 30 falls due               Provided...............". It was common ground before the High Court and has not  been disputed before us that the date of last instalment for  the years  1360F to 1362F was June 28, 1960.  The date  of  last instalment  for the year 1363F was September 19, 1958.   The order  of attachment having been made on March 10, 1962  was clearly beyond one year from June 28, 1960 and September 19, 1958.   The  question which arose was whether  the  recovery proceedings were commenced before March 10, 1962.  According to  the  assessee ’the recovery proceedings  commenced  only when,  the attachment was effected and not earlier and  that they could be said to commence only when some actual process was  issued  under  the provisions  of  the  U.P.  Zamindari Abolition and Land Reforms Act, 1950, Act 1 of 1951. Now as regards the years 136OF and 1361F the evidence  which was  admitted by the Division Bench showed that  the  Deputy Commissioner,  who  was the assessing  authority,  had  made orders  directing the Tehsildar to realize various  sums  as arrears of land revenue.  Thus, according to the High Court, the  proceedings for recovery commenced with the  making  of these  orders, (Annexures A-1 to A-5).  It was  pointed  out that these orders were made on various dates ranging between October  9,  1960  to December 2, 1960.   These  dates  were within  one year from June 28, 1960 which was the last  date of instalment for the years 136OF and 1361F. The  question  which  falls  for  determination  is  whether proceedings  can be said to commence for recovery  when  the assessing  authority makes a motion within s. 32(1)  to  the Collector  for recovery of the agricultural income  tax  and penalty  as an arrear of land revenue.  The  Allahabad  High Court has consistently held that proceedings for recovery of tax under the Act should be deemed to commence from the date of the request made by the assessing authority under the Act to  the  Collector  to take steps  for  realization  of  the arrears  of tax and other dues; (see Lal Bhan Pratap  Narain Bahadur  Pal v. State of Uttar Pradesh &  Another(1).   This view  is based on various decisions under the Indian  Income tax Act, 1922.  Section 46(7) of that Art provid- (1)  (1962) Vol. 60 All.  Ll.  J. 358. 5 33 ed  that no proceedings for the recovery of any sum  payable under  that Act could be commenced after the  expiration  of one  year from the last day of the financial year  in  which the  demand  was made under that Act.  Under  s.  46(2)  the Income tax Officer was empowered to forward to the Collector a  certificate specifying the amount of arrears due from  an assessee,  and the Collector on receipt of such  certificate had  to  proceed to recover from such  assessee  the  amount specified  therein as if it were an arrear of land  revenue. This   provision  together  with  s.  46(7)  came   up   for consideration  in a number of cases before the  High  Courts and  there appears to be unanimity of opinion that when  the certificate  is forwarded by the Income tax Officer  to  the Collector for recovery of the dues the recovery  proceedings commence  from that point of time.  Some of these have  been referred to in Kishorilal v.  Tirloki  Nath(1)  and  it   is pointless to refer to them again. In our judgment there is hardly much difference between the provisions  of  s.  32  of the  Act  and  the  corresponding

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provisions of s. 46 of the Income tax Act 1922.  Both  these statutes relate to taxation of income and the provisions  in question are in pari materia although the words employed may not  be  exactly the same.  The proceedings  for  recovery,, therefore,  in the present case, were rightly held  to  have commenced  with-the  making  of  the  orders  contained   in annexures A-1 to A-5. As  regards  the assessment for the year 1362F it  has  been pointed  out  on behalf of the assessee  that  the  original orders passed for taking proceedings for realization of  tax were  missing  from the record.  The  High  Court,  however, relied  on  the  entries  of the  registers  of  demand  and collection   and   was  satisfied  that  "some   order   for realization  of tax for 1362F was received by the  Tehsildar of  Lakhimpur  in  July or August 1960".   That  date  being within one year from June 28, 1960 the recovery  proceedings were  held to be within time.  It appears that  the  depart- mental  authorities  did not produce  satisfactory  evidence relating to the making of orders for realization of the  tax in respect of the year 1362F inasmuch as the original orders were not produced.  The learned judges of the High-court  as stated before, saw the register and after examination of the entries  therein were satisfied that an order had been  made for realization of tax within one year from June 28,  19610. We  would be most reluctant to interfere with that  flnding. So  far  as the year 1363F was concerned the  date  of  last instalment was September 19, 1958.  According to annexure A- 5  the Sub-Divisional Officer, Lakhimpur, made an  order  on October 1, 1959 with regard to the demand for that year. The High Court found that the Deputy Commissioner had made (1)  (1962) Vol. 60 All.  L.J. 360. 534 an endorsement on October 5, 1959.  As the order was made on October  1, 1959 it was beyond one year from  September  19, 1958.   In the appeal filed by the departmental  authorities it  has not been shown in what manner the High Court was  in error  in holding that the proceedings for recovery  of  tax and penalty for the year 1363F were barred by time. In the result both appeals fail and are dismissed.  In  view of  the unsatisfactory nature of the evidence produced  with regard to the year 1362F by the departmental authorities  we make  no  order  as  to costs in the  appeal  filed  by  the assessee.  The assessee, shall, however, be entitled to  his costs in the appeal filed by the departmental authorities. Y.P.                                                 Appeals dismissed. 53 5