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1982 DIGILAW 20 (KER)

BEPATHUMMA v. SPL. DY. TAHSILDAR

1982-01-15

U.L.BHAT

body1982
Judgment :- The petitioner seeks appropriate writ directing the respondents to forebear from enforcing Ext P2 notice or effecting sale of the land shown in Ext. P2 notice and to issue a writ of certiorari to quash Ext. P2 notice. 2. The petitioner is one of the heirs of her father U.N.Muhammad Kunhi who died in 1969. On the return filed by his son T. P. Kuttiali under the provisions of the Estate Duty Act, 1953 (for short the 'Act'), assessment was completed by the second respondent, who is the authority under the Act and Ext. PI assessment order was issued levying estate duty of Rs. 14 467.00. The duty so levied not having been paid, an attempt was made to recover the sum under the provisions of the Kerala Revenue Recovery Act, 1968 (for short the "R. R act" ). The first respondent, who is the Special Deputy Tahsildar (Arrear collection) Tellicherry, issued Ext. P2 notice under S.49 (2) of the R. R. Act stating that if the estate duty together with costs and interest is not paid, the land in T S.106 of the Tellicherry Municipality will be sold. The petitioner, claiming to be in occupation of this land, is aggrieved by Ext. P2 notice. 3. According to the learned counsel for the petitioner, estate duty can be recovered as arrear of income-tax under the Income Tax Act, 1961 and that can be done only by the Tax Recovery Officer notified under that Act and the first respondent has not been so notified and as such he is incompetent to take steps for recovery of the estate duty. This argument has been submitted on the assumption that estate duty is to be recovered under the provisions of the Income-tax Act, 1961 and not under the provisions of the Indian Income-tax Act, 1922. Alternatively it is submitted that the machinery of the State Government (first respondent is an employee of the State Government) cannot be utilised for the purpose and if at all, the machinery of the Telhcherry Municipality alone can be utilised and in such an event, the concerned officer has no right to attach or bring immovable property to sale and can proceed only to distrain and sell movable assets or to proceed according to the provisions of the Kerala Municipalities Act. The learned counsel for the respondents contends that estate duty has to be recovered not in accordance with the provisions of the Income-tax Act, 1961 but in accordance with the Indian Income-tax Act, 1922 which contemplated recovery in accordance with the provisions of the R. R. Act. They further contended that even it the provisions of the Income-tax Act, 1961 are to be applied, recourse can be had to the provisions of the R. R. Act as has been done in the instant case. 4. S.58 (3) of the Act refers to an assessment order being passed by the Controller. S.74 states that estate duty is first charge on the property liable thereto. S.73 (1) requires the Controller to serve a notice of demand on the person accountable or liable to pay the duty, specifying the sum payable and the time for payment. S.73 (5) says that the provisions of sub-sections (1), (1) (a), (2) to (5), (5) (a), and (6) and (7) of S.46 and S.47 of the Indian Income-tax Act, 1922 shall apply as if the said provisions were provisions of the Act and referred to estate duty instead of the income-tax and the Controller of estate duty instead of the Income-tax Officer. Indian Income-tax Act, 1922 was repealed by the Income-tax Act, 1961 (See S.297) The provisions referred to in S.73 (5) of the Act have corresponding provisions in the Income-tax Act, 1961 and they are Ss.221 (1), 222 (1), 226 (5), 226 (2), 226 (3), 227, 231, 232, 222 (2) and 229 respectively of the Income-tax Act, 1961. The respondents have taken a stand that notwithstanding the repeal of the Indian Income-tax Act, 1922, the provisions of that Act alone govern the recovery of estate duty. According to the petitioner, the provisions of the Income-tax Act, 1961 will have to be followed, eventhough there are certain similarities in the provisions of the two Income-tax Acts in the matter of recovery, there are also certain differences. 5. There can be no doubt that normally reference in any other Act to the provisions of an Act which has been repealed subsequently should be considered as reference to the provisions of the re-enacted provisions, unless a different intention appears. This is the effect of S.8 of the General Clauses Act also. A different intention could be gathered depending on the provisions of a particular statute. This is the effect of S.8 of the General Clauses Act also. A different intention could be gathered depending on the provisions of a particular statute. If it is a case where the provisions of the Act are incorporated by a reference in another Act, the repeal of the earlier Act has, generally speaking, no eftect upon the construction or effect of the Act in which the provisions have been incorporated. If, however, there is a mere reference to provisions of one statute in another without incorporation, reference should be considered as reference to the provisions as may be in force front time to time in the former statute. (Vide AIR 1979 SC. 798). 6. There can be no doubt that S.7315) of the Act contains a provision by incorporation and t of merely a provision of reference. It does not merely make mention of or refer to certain provisions of the Indian Income-tax Act, 1922. It says that these provisions shall apply as if they were provisions of the Estate Duty Act and the reference to the Income-tax Officer shall be considered as reference to the Controller of Estate Duty and reference to income-tax shall be understood as reference to estate duty. In other words, certain provisions of the Indian Income-tax Act, 1922 have been bodily incorporated into the scheme of the Estate Duty Act. This is a scheme of incorporation and therefore, the repeal of the Income-tax Act, 1922 will not have the effect of the provisions of the re-enacted Act being rendered applicable to the Estate Duty Act. The provisions of the Indian Income-tax Act, 1922 referred to in S.73 (5) of the Act will govern the recovery of the estate duty. 7. In the writ petition the only attack is that if the provisions of the Income-tax Act, 1961 are applicable, the first respondent has no authority or competence to issue notice or to effect recovery of the estate duty. That is because, according to the petitioner, he is not a tax recovery officer as defined in the Act. However, nowhere in the writ petition the petitioner has all ged that if the provisions of the Indian Income-tax Act 1922 are to be applied, the I>rst respondent has no authority or competence :o issue notice or effect recovery of the estate duty. However, nowhere in the writ petition the petitioner has all ged that if the provisions of the Indian Income-tax Act 1922 are to be applied, the I>rst respondent has no authority or competence :o issue notice or effect recovery of the estate duty. S.46 (2) of the Indian Income-tax Act, 1927 states that the Income-tax Officer may forward a certificate to the District Collector of the concerned district who may take steps to recover the amount due as if it were arrear of land revenue. There is no averment in the writ petition to the effect that under S.46 (2) of the Indian Income-tax Act, 1922 read with the provisions of the R R. Act, the second respondent has no competence to do the act complained of in this writ petition. Therefore, it is unnecessary for me to consider whether there has been a valid notification issued under the Indian Income-tax Act, 1922 or under the provisions of the R. R. Act vesting any authority with the first respondent to take steps for recovery of the estate duty. In this view, the validity of the impugned notice has to be upheld. 8. I have referred to another argument of the learned counsel for the petitioner based on S.46 (5) of the Indian Income-tax Act, 1922 and the corresponding Section in the Income-tax Act, 1961 whereunder State Government can cause recovery of the tax in the same manner as and by the same person, who would be competent to recover municipal tax or local rate due and that reference to municipal tax and local rate would indicate that only officers of the local bodies such as Municipality, Panchayat, Corporation, etc. who could take steps for recovery and not officers under the R. R. Act. Since recovery is competent under S.46 (2) of the Indian Income-tax Act, 1922, it is unnecessary for me to consider the exact scope of S.46 (5) of that Act, In the result, this original petition is dismissed, but without costs.