R. Jayasimha Babu, J.
1. The petitioner is the Pondicherry Textile Corporation Limited, an undertaking owned by the Government of Pondicherry. The petitioner in this petition has sought for a writ of prohibition to forbear the respondents, the Union of India, the Commissioner of Income-tax and his subordinates, from taking any steps or proceedings against the petitioner or its assets under the provisions of the Income-tax Act, 1961, or any other Act for the purpose of recovering the arrears of income-tax payable by the Anglo-French Textiles Limited, Pondicherry, for the period prior to December 24, 1985.
2. The undertaking of the Anglo-French Textiles Limited, which was a sick company, was acquired by the Government of Pondicherry under the Anglo-French Textiles Limited (Acquisition and Transfer of Textile Undertaking) Act, 1986 (Act No. 7 of 1986) (hereinafter referred to as 'the Act'). After such acquisition, the undertaking stood transferred to and vested in the petitioner under Section 3(2) of the Act. Section 3 of the Act provides for acquisition of rights of Anglo-French Textiles Limited and the right, title and interest of the owner in relation to the textile undertaking of that company is transferred to and vested absolutely in the Government by virtue of Section 3(1) of the Act. By Sub-section (2) of Section 3 of the Act, the textile undertaking which vested in the Government stands transferred from the Government to the Corporation.
3. Section 4 of the Act sets out the general effect of vesting. The textile undertaking is deemed to include all assets, rights, lease-holds, powers and other rights, but significantly omits any reference to liability. Section 5 of the Act specifically provides that every liability of the owner of the textile undertaking in respect of any period prior to the appointed day, shall be the liability of such owner and shall be enforceable against him and not against the Government or the Corporation. Section 5(2)(a) of the Act declares that save as otherwise expressly provided in this section or in any other section of this Act, no liability in relation to the textile undertaking, in respect of any period prior to the appointed day, shall be enforceable against the Government or the Corporation. The 'appointed day' is defined in Section 2(a) of the Act to mean the 24th day of December, 1985. The Corporation referred to in Section 3(2) and Section 5 of the Act is defined in Section 2(d) of the Act as Pondicherry Textile Corporation Limited.
4. Section 4(2) of the Act provides that all the property which has vested in the Government under Section 3(1) of the Act shall, by force of such vesting, be freed and discharged from any trust, obligation, mortgage, charge, lien and all other encumbrances, affecting it, and any attachment, injunction or decree or order of any court restricting the use of such property in any manner shall be deemed to have been withdrawn.
5. Section 7 of the Act provides for payment of amount to the owner of the textile undertaking. The amount payable specified in the First Schedule is Rs. 7,65,00,000. Section 7(2) of the Act provides for interest at the rate of four per cent. per annum on the amount specified against such owner, for the period from the appointed day to the date of payment. Section 12 of the Act provides for appointment of a Commissioner of Payments for the purpose of disbursing the amounts payable to the owner of the textile undertaking. Section 14(2) of the Act reiterates :
'Save as otherwise provided in this Act, the liabilities in relation to the textile undertaking in respect of any period prior to the appointed day shall be the liabilities of the owner of the textile undertaking.'
6. Section 15 of the Act makes provision for claims to be made to the Commissioner by the creditors of the owner of the textile undertaking, the owner referred to therein being Anglo-French Textiles Limited. Section 16 of the Act lays down the priority in accordance with which claims are to be entertained. The order of priorities for the discharge of the liabilities of the undertaking, which is required to be followed by the Commissioner of Payments is set out in the Second Schedule which classified the liability into three categories :
Order of priorities for the discharge of liabilities in respect of textile undertaking
CATEGORY-I :
(i) All dues including gratuity of persons employed in the textile undertaking ;
(ii) Arrears relating to contributions towards provident fund and contributions under the Employees State Insurance Act, 1948, payable by the owner ;
(iii) Arrears of excise duty, sales tax, dues relating to electricity and dues of a local authority.
CATEGORY-II :
Secured creditors including banks and institutions.
CATEGORY-III :
(i) Sundry creditors ;
(ii) Other liabilities.
7. Section 17(2) of the Act provides that if on examination of the claims, the Commissioner is of the opinion that the amount paid to him under the Act is not sufficient to meet the liabilities specified in any lower category, he shall not be required to examine the liabilities in respect of such lower category. Section 15 of the Act lays down the period of limitation for making claims. The limitation prescribed is 30 days from the specified date and the proviso thereto empowers the Commissioner to extend the period for a further period of 30 days. Section 20 of the Act provides that if out of the moneys paid to the Commissioner, as specified in the Act, there is any balance left, after meeting the liabilities specified in the Second Schedule, such balance may be paid by him to the owner. Section 23 of the Act provides that the Act is to override all other enactments notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act or in any decree or order of any court, Tribunal or authority.
8. It is clear from the provisions of the Act that all the assets of Anglo-French Textiles Limited vested in the Government of Pondicherry on the appointed day December 24, 1985, and thereafter stood transferred to the petitioner on the same day. No liability of the company Anglo-FrenchTextiles Limited was taken over either by the Government or by the Corporation under any of the provisions of the Act.
9. As on the appointed day, viz., December 24, 1985, the assessment proceedings under the Income-tax Act, as regards the income of Anglo-French Textiles Limited were pending for the assessment years 1980-81 and 1981-82 and the assessment came to be finally made only in the year 1988. The delay in completion of the assessment was on account of the fact that the assessment order made by the Income-tax Officer had been set aside in appeal by the Commissioner of Income-tax and fresh assessment had to be made thereafter. That company was found under the assessment orders to be liable to pay tax and that amount together with the interest levied under Section 220(2) of the Act, as on March 2, 1982, aggregated to Rs. 3.94 crores. The assessee was served with the notice dated March 2, 1982, under Section 281 of the Income-tax Act, in which it was stated that the petitioner was aware that a notice dated March 16, 1984, was served on the provisional liquidator treating him as the principal officer of the company, Anglo-French Textiles Limited, Pondicheny, and during the pendency of the assessment proceedings, the petitioner had taken over the undertaking Anglo-French Textiles Limited under the provisions of the Acquisition Act that such acquisition was without the permission of the Income-tax Officer and, therefore, the transfer of the assets of Anglo-French Textiles Limited to the petitioner was void Section 281 of the Income-tax Act in so far as the income-tax dues of the company were concerned.
10. The petitioner was by that notice directed to show cause as to why an order treating the transfer of the assets of the undertaking to the petitioner under the provisions of the Acquisition Act, as void under Section 281 of the Income-tax Act, should not be made.
11. The petitioner thereafter instituted this writ petition. It is not necessary to refer to the correspondence exchanged between the parties or to another petition which the petitioner had filed, on which this court had directed the petitioner to furnish replies to an earlier notice. Notwithstanding the reply furnished to the earlier notices, the Assessing Officer having proceeded to initiate proceedings under Section 281 of the Income-tax Act, the assessee was compelled to approach this court for relief.
12. It is submitted by learned counsel for the petitioner that the Acquisition Act, has in very clear terms provided, that none of the liabilities of the company were taken over ; that the liabilities remain that of the company, Anglo-French Textiles Limited ; that the terms of the Acquisition Act have been given an overriding effect ; and it is therefore not permissible for the respondent to assert any right to recover the arrears of tax due from the company which had owned the industrial undertaking, from the petitioner, counsel submitted that the effect of the Acquisition Act was not to bring about a transfer as contemplated in Section 281 of the Income-taxAct, and that the petitioner also could not be regarded as a successor for the purpose of Section 170 of the Income-tax Act.
13. Learned counsel for the Revenue, on the other hand, contended that the petitioner is a transferee as also a successor-in-interest of Anglo-Frech Textiles Limited and action under Section 281 as also under Section 170 of the Income-tax Act, and that action can be taken against the petitioner for recovery of the amount due from the Anglo-French Textiles Ltd., as that company is now unable to pay the tax and its undertaking vested in the State and thereafter with the petitioner, under the terms of the Acquisition Act.
14. The effect of the non-obstante clause in Section 23 of the Acquisition Act may be considered first. That section reads as under :
'23. Act to override all other enactments.--The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act or in any decree or order of any court, Tribunal or authority.'
15. The Acquisition Act was enacted by the Pondicherry State Legislature to which the President has given his assent. However, that Act cannot be regarded as overriding or as having amended the Income-tax Act. The Legislature of the Union Territory clearly has no power to legislate on the subject of income-tax, that subject being one on which only Parliament can legislate. The non-obstante clause in the Acquisition Act cannot override the provisions of the Income-tax Act.
16. The Acquisition Act, significantly does not specifically provide for the discharge of the liabilities of Anglo-French Textiles Limited under the Income-tax Act. The claim for arrears of income-tax would only fall under Category III, as Category I does not provide for payment of all statutory liabilities but only of the statutory liabilities specified therein.
17. If Sections 281 and 170 of the Income-tax Act are in terms applicable, notwithstanding the enactment of the Acquisition Act those provisions will have to be given full effect having due regard to the scheme and the contents of the Acquisition Act.
18. The Supreme Court in the case of Mangalore Electric Supply Co. Ltd. v. CIT : [1978]113ITR655(SC) while dealing with Section 12B(1) of the Indian Income-tax Act, 1922, held that the word 'transfer' must be given its full and actual meaning and there is no justification for restricting the wide comprehension of the word 'transfer' to voluntary transfers by the application of the ejusdem generis rule. The court therein negatived the claim of the assessee that the compensation received as a result of compulsory acquisition is not liable to be charged to capital gain. The court held that the capital gain resulting from compulsory acquisition is capital gain arising as a consequence of transfer.
19. In the case of CIT v. Bangalore Transport Company Ltd. (In Liquidation) : [1967]66ITR373(SC) , the Supreme Court, while considering a claim of the assessee, that it is not liable to tax at all during a particular assessment year, as its business was acquired by the Government in the middle of the financial year, held that the taxable profits, under the scheme of the Income-tax Act, being determined at the end of the previous year, it does not follow therefrom that profits earned during a part of the year is free from the charge of income-tax. The court held that the profits of the asses-see therein upto the date of acquisition was exigible to tax.
20. In the case of CIT v. K.H. Chambers : [1965]55ITR674(SC) , the court dealing with the case of transfer of business from a father to his son, the father having reserved some assets for the discharge of debts, held that notwithstanding such retention of some assets for the discharge of debts, the whole of the business was transferred to his son, its identity was preserved and the same business continued. There was, therefore, a succession within the meaning of Section 25(4) of the Indian Income-tax Act, 1922. In the course of the judgment, the following observations with regard to 'succession' was made (headnote) :
'Succession involves change of ownership ; that is, the transferor goes out and the transferee comes in ; it connotes that the whole business is transferred ; it also implies that substantially the identity and the continuity of the business are preserved. If there is a transfer of a business, any arrangement between the transferor and the transferee in respect of some of the assets and liabilities not with a view to enable the transferor to run a part of the business transferred but to enable the transferee to run the business unhampered by the load of debts or for any other appropriate collateral purpose cannot detract from the totality of the succession.
The expression 'succession' has acquired a some what artificial meaning. The tests of change of ownership, integrity, identity and continuity of a business have to be satisfied before it can be said that a person 'succeeded' to the business of another.'
21. The observation made by the Supreme Court regarding the scope of the word 'transfer' while considering the claim by an assessee who had sought to repudiate liability to tax on capital gains arising from the compulsory acquisition of the property cannot be imported into Section 281 of the Income-tax Act whose object is entirely different. The object of Section 281 of the Act is not to guard the Revenue against the actions of the Legislature or Parliament, but is to protect the Revenue from the act of an assessee whose action is intended to defraud or to avoid payment of tax, by transferring the assets owned by the assessee to another without the permission of the Assessing Officer and for an inadequate consideration. No officer acting under the provisions of any law can assert a right todeclare any other legislation as void. Section 281 of the Income-tax Act does not vest any such powers in the Assessing Officer.
22. It would be absurd to suggest that Parliament or the Legislature of a State or the Legislature of a Union Territory should apply to the Assessing Officer and seek permission before enacting the law which provides for compulsorily acquiring the property belonging to the assessee. If the proposition contended for the Revenue is to be accepted, in almost every case of land acquisition, it will be open to the Assessing Officer to contend that the unpaid taxes of the owner of the acquired land should be paid by the Government and that the acquired land can be brought to sale by the Tax Recovery Officer for recovering the dues of the person whose land was compulsorily acquired.
23. It is equally absurd to suggest that the Legislature or Parliament should satisfy the Assessing Officer as to the adequacy of the compensation awarded to show that the amount awarded or provided for in the statute can be regarded as adequate consideration for the purposes of Section 281 of the Income-tax Act. Compulsory acquisition by the State of the under taking owned by an assessee, under a validly enacted law is wholly outside the purview of Section 281 of the Income-tax Act. The notice issued by the Assessing Officer proposing to invoke Section 281 of the Act is wholly unsustainable.
24. Though notice sent by the Assessing Officer does not refer to Section 170 of the Income-tax Act, it was the endeavour of counsel for the Revenue to sustain the action of the Assessing Officer on the ground that the assessee is the successor of Anglo-French Textiles Limited and is, therefore, liable to pay the arrears of tax of that company.
25. Section 170 of the Income-tax Act deals with succession to business otherwise than on death. When the undertaking of a sick industry is acquired compulsorily by a law enacted by a State Legislature for that specific purpose and the assets of the undertaking are vested with the Government, it cannot be said that there is succession to the business of the assessee whose undertaking has been acquired. The Government in whom the undertaking vested did not carry on the business that had been carried on by the company whose assets were acquired. The proceedings also have not been initiated against the Government by the Revenue. The proceedings had been taken against the petitioner to whom by virtue of Section 3(2) of the Act, the undertaking that had vested in the Government stood transferred. The fact that the petitioner thereafter carried on business as a manufacturer with the aid of the assets that had once belonged to the company would not make it a successor to the business of that assessee for the purposes of Section 170 of the Income-tax Act. It is not possible to regard the appointed day fixed under the provisions of the Acquisition Act as the date of succession by the petitioner to the business of the company.
26. When the Acquisition Act was enacted the amount payable to the owner was fixed at Rs. 7.65 crores. That was the amount which the Legislature regarded as the amount properly payable as compensation. The Revenue cannot now add to that amount by seeking to treat the petitioner as the successor for the purpose of Section 170 of the Income-tax Act. The petitioner did not acquire anything from the company by way of transfer. What the petitioner did receive was what was given to it by the Government of Pondicherry and not by the company, Anglo-French Textiles Limited.
27. The petitioner is entitled to a declaration that the petitioner is not liable for payment of arrears of income-tax or any other amount claimed on account of the tax being in arrears or by way of interest or penalty for the period prior to December 24, 1985, in so far as such claims pertain to the liabilities of Anglo-French Textiles Limited, Pondicherry.
28. Having regard to the circumstances of the case, there will be no order as to costs.