K.a Veerichetty and Sons Vs. Income-tax Officer (Collection), Circle-1, Saleh and anr. - Court Judgment

Excerpt:
- karnataka panchayat raj act, 1993.[k.a. no. 14/1993]. sections 43 & 168: [mohan shantanagoudar, j] membership of gram panchayat- held, seat of member becomes vacant on expiry of fifteen days from date of receipt of such resignation, unless he withdraws resignation letter. where there is nothing on record to show that petitioner had withdrawn his resignation letter subsequently, petitioner had vacated his office as a member of gram panchayat within fifteen days from the date of his letter as prescribed under law. burden of proof heavily lies on one who files a petition for declaring the seat vacant. impugned order passed by state election commissioner declaring that seat of petitioner has become vacant based on assumptions and surmises is liable to be quashed. -- sections 167(2) & 168 (2): member of gram panchayat power of state election commission to declare seat as vacant on report made to it held, sections 167(2) and 168(2) of the act would indicate that the state election commission, on a report made to it, shall declare the seat of a person concerned is or has become vacant after giving reasonable opportunity of being heard to the person concerned is or has become vacant after giving reasonable opportunity of being heard to the person concerned. the word report found in the aforesaid sections cannot be read as official report. the act, furnishes a complete machinery in itself for the better administration and supervision of panchayats. if the word report is to be read as official report, them, the official before giving such report will have to conduct mini enquiry, inasmuch as he cannot send the report blindly without application of his mind and without hearing the parties. such mini enquiry is not contemplated under the act and the same is not the intention of the legislature also. the legislation consciously is silent about two tier enquiry. courts will not legislate under the garb of interpreting the existing law. the court has to interpret the word report in its ordinary popular sense, consistent with the context. viewed from popular sense of the term report, particularly in the context in which the said word, it is clear that the report simpliciter, which means anybody can approach by filing petition or by reporting to the state election commission. -- section 167(2): membership of gram panchayat dispute as to vacant seat complaint lodged by respondents with allegation that petitioner has not resigned within stipulated period from date of notification after getting himself elected as a member no allegation of corrupt practice or any criminal charge held, proceeding in question against petitioner is not quasi-criminal in nature. standard of proof required is not beyond reasonable doubt. matter has to be decided on the basis of preponderance of probabilities. -- section 168(2): election to panchayat adjudication of disputes arising between parties parties consenting for recording their statements on oath before state election commissioner held, state election commissioner has got jurisdiction to record statements on oath. though the commissioner is required to adjudicate disputes between parties judiciously, he cannot be termed as court for purpose of section 168 (2) of the act. there is no question of violation of principles of natural justice or mandatory requirement of law under section 168(2). plea that state election commissioner has no power to administer oath and record evidence, inasmuch as said power is not conferred expressly on him by act is not tenable. - if the attachment is illegal, then it goes without saying that the certificate would be bad. veerichetty & sons' do not owe any money to 'shanmugam textiles',the impugned attachment was wholly illegal and the certificate issued for recovery of the money under attachment was equally bad.jagannatha shetty, j.1. m/s. k. a. veerichetty & sons, the petitioner, is a partnership firm, of which one shanmugam was a partner. he was also a member of an association of persons called 'shanmugam textiles'. shanmugam textiles was an assessee for the assessment years 1965-66. the association of persons was assessed determining the tax liability at rs. 3,31,392 as income-tax and rs. 69,280 as annuity deposit. 2. for recovering the above tax, on december 1, 1973, the income-tax officer (collection), salem, under section 226(3) of the income-tax act, attached certain deposit belonging to v. shanmugam, lying with m/s. k. a. veerichetty & sons. the attachment was followed by a certificate issued under section 222 of the income-tax act, stating that rs. 1,35,582 is due from the petitioner on behalf of m/s. v. shanmugam and l. v. veerichettiar as members of the association of persons of m/s. shanmugam textiles and with a request that it should be recovered from the sum attached. the certificate has been issued to the tax recovery officer, bangalore - respondent 2 before me. 3. the question is whether the said certificate is valid. the answer to the question depends on the validity of attachment effected under section 226(3) of the income-tax act. if the attachment is valid, then the certificate shall be held to be valid. if the attachment is illegal, then it goes without saying that the certificate would be bad. section 226(3) of the income-tax act, 1961, so far as it is relevant provides : '226. (3) (i) the income-tax officer may, at any time or from time to time, by notice in writing require any person from whom money is due or may become due to the assessee or any person who holds or may subsequently hold money for or on account of the assessee, to pay to the income-tax officer either forthwith upon the money becoming due or being held or at or within the time specified in the notice (not being before the money becomes due or is held) so much of the money as is sufficient to pay the amount due by the assessee in respect of arrears or the whole of the money when it is equal to or less than that amount..... (ix) any person discharging any liability to the assessee after receipt of a notice under this sub-section shall be personally liable to the income-tax officer to the extent of his own liability to the assessee so discharged or to the extent of the assessee's liability for any sum due under this act, whichever is less. (x) if the person to whom a notice under this sub-section is sent fails to make payment in pursuance thereof to the income-tax officer, he shall be deemed to be an assessee in default in respect of the amount specified in the notice and further proceedings may be taken against him for the realisation of the amount as if it were an arrear of tax due from him, in the manner provided in sections 222 to 225 and the notice shall have the same effect as an attachment of a debt by the tax recovery officer in exercise of his powers under section 222.' 4. the requirement of the section for attaching money in the hands of any person is that that money must be due or may become due to the assessee or he must hold or may subsequently hold money for or on account of the assessee. in the instant case, the assessee who is in default is m/s. 'shanmugam textiles', an association of persons. the petitioner, 'm/s. k. a. veerichetty & sons', admittedly, did not owe any money to the assessee. they might owe money to v. shanmugam who was a partner and who is also one of the members of the association of persons called 'shanmugam textiles'. but that is not sufficient to invoke the provisions of section 226(3). so long as it is not disputed that 'm/s. k. a. veerichetty & sons' do not owe any money to 'shanmugam textiles', the impugned attachment was wholly illegal and the certificate issued for recovery of the money under attachment was equally bad. 5. in the result, the rule is made absolute and a writ in the nature of certiorari shall issue quashing the impugned certificate dated january 18, 1974, issued by respondent 1 to respondent 2. 6. the petitioner is entitled to its costs. advocate's fee, rs. 100.