Union of India (Uoi) Vs. B.C. Nawn and ors. - Court Judgment

De, J.

1. This application by the Union of India under Article 227 of the Constitution of India is directed against an order of the Revenue Divisional Commissioner reversing the order of the Tax Recovery Officer in his Certificate Case No. 659-I.T.(A)/68-69. The opposite party, B.C. Nawn & Bros. (P.) Ltd., was assessed to income-tax under Section 144 of the Income-tax Act, 1961 (to be hereafter mentioned as 'the Act'). The Income-tax Officer, who assessed the tax, served a notice of demand under Section 156 of the Act upon the opposite-party-assessee. The assessee did not pay the assessed tax within the period specified in Section 220(1). He preferred an appeal against the order of assessment before the Appellate Assistant Commissioner under Section 246 and later before the Income-tax Appellate Tribunal under Section 253. On the prayer of the assessee, the Income-tax Officer allowed him, under Section 220(3), to make an initial payment towards the assessed tax and to pay the balance in a number of instalments There was default by him in the matter of compliance, with that order. The Income-tax Officer then took steps for attachment and sale of the assessee's immovable properties. Thereupon, the assessee filed a petition of objection under Rule 9 of Schedule II of the Act before the Tax Recovery Officer praying for postponement of further proceeding in the certificate case till the disposal of his appeal before the Income-tax Appellate Tribunal and alternatively for withdrawal of the notice issued by him for settling the proclamation of sale of his immovable properties. This petition was opposed by the Union of India and was rejected by the Tax Recovery Officer by his order dated July 11, 1969. Against that order, the assessee filed an appeal before the Revenue Divisional Commissioner under rule 86 of Schedule II of the Act. The Revenue Divisional Commissioner allowed the appeal by his order dated October 14, 1969, holding that the tax was not recoverable by summary certificate procedure during the pendency of the appeal by the assessee before the Income-tax Appellate Tribunal. It is this order which is challenged in this application as being made in excess of his jurisdiction.

2. When income-tax is assessed, as in the case under Section 144, the sum determined becomes payable by the assessee. After a tax is so determined, the Income-tax Officer serves on the assessee a notice of demand underSection 156. That obliges the assessee to pay the said sum within a specified period. If the assessee does not make payment within the period in Sub-section (1) or (3) of Section 220, he becomes a defaulter. When the assessee becomes a defaulter, the Income-tax Officer may forward to the Tax Recovery Officer a certificate specifying the amount for recovery by him under Section 222. The Tax Recovery Officer, upon receipt of such certificate, proceeds to recover the sum. These provisions show that a tax, once assessed and determined as payable, becomes recoverable if the assessee be a defaulter. The recovery of tax by the Tax Recovery Officer can only be halted either by stay of the certificate proceeding under-orders of the proper authorities or by cancellation or withdrawal of it. 'Tax' can be said to be irrecoverable only when there is no assessment or when the assessee is not a defaulter. In the instant case, the tax has been assessed and determined as payable under Section 144 and the assessee is a defaulter, not having paid the sum within the specified time after receipt of notice of demand under Section 156. It was contended before the Tax Recovery Officer by the assessee in his petition under rule 9 of Schedule II of the Income-tax Act, that the assessment, which is the subject-matter of the certificate, having been disputed by filing an appeal, had lost its finality and had become irrecoverable. The Tax Recovery Officer rejected the contention. There is no provision in the Act in support of the contention that an assessment becomes provisional or non-existent or vanishes with the filing of an appeal against it or during the pendency of such an appeal. The provisions in the Act go to show that the assessment remains final even during the pendency of appeal against it. Sub-section (6) of Section 220 empowers the Income-tax Officer to treat the assessee as not being in default, if the assessee files an appeal before the Appellate Assistant Commissioner under Section 246. If the assessment is taken as nonexistent with the filing of the appeal, as contended, the above provision becomes meaningless. It has been decided by the Supreme Court in Income-tax Officer, Cannanore v. M. K. Mohammed Kunhi, [1969] 71 I.T.R. 815, [1969] 2 S.C.R. 85 (S.C) that the Appellate Assistant Commissioner and the Income-tax Appellate Tribunal have power to stay proceedings before the Certificate Officer. Sub-section (4) of Section 225 provides for amendment of the certificate or withdrawal of it in accordance with the order in the appeal against the assessment. Provision has also been made in Section 240 for ' refund ' as may be due to the assessee on the result of any order passed in appeals under this Act. The assessee himself applied for stay more than once before the Tax Recovery Officer and even in his petition of objection under Rule 9 of Schedule II. It is clear from the various provisions referred to above that the assessment remains final even during the pendency of the appeal. This is to be noted that there is no provision in the Act for ' revival' of the assessment after the disposal of the appeals. Section 231 of the Act lays down periods for commencement of the proceeding for recovery of assessed amount. The assessment does not cease to exist or to be final with the filing of the appeals. The contention that the assessed amount cannot be recovered during the pendency of the appeals is unsound.

3. Section 224 is that it shall not be open to the assessee to dispute before the Tax Recovery Officer the correctness of the assessment or for the Tax Recovery Officer to entertain any objection to the certificate on any ground. This bars an objection by the assessee as to the recoverability of the assessed tax before the Tax Recovery Officer. The learned advocate, appearing for the opposite party, contended that Rule 9, Schedule II, clearly provides that all questions between the defaulter and the Tax Recovery Officer relating to execution, discharge and satisfaction of the certificate are to be decided by the Tax Recovery Officer and not by suit. He contended that the assessee was entitled under this rule to raise an objection that the amount of the certificate was irrecoverable on account of pendency of the appeal. That Rule 9 has application to cases which are not 'expressly provided by the Act' and which relate to certificates 'duly filed '. Express provision has been made in Section 224 to the contrary to the effect that no objection to the certificate on any ground shall be entertained by the Tax Recovery Officer. This case, coming under Section 224, cannot be entertained under Rule 9. A certificate is 'duly filed' when there is an assessment and the assessee is in default. In the petition of objection, the opposite party contended that the assessment had lost its finality or existence. His question was not, therefore, about a certificate ' duly filed '. Rule 1(b) and (c) of Schedule II defines ' defaulter ' as the assessee and ' execution ' as recovery of arrears in pursuance of a certificate. The person, who disputes that he is an assessee, cannot come under Rule 9. It was next contended by the learned advocate, appearing for the opposite party, that the second part of Section 224(1) speaks only of objection as to the correctness of the assessment and not to the assessment itself. The first part relates to disputes as to correctness and the second part clearly refers to objection ' on any ground ' to the ' certificate '. The Tax Recovery Officer and the Income-tax Appellate Tribunal both went wrong in entertaining the petition of objection and in making orders thereon in disregard of Section 224.

4. An assessment, once it is made and its amount remaining unpaid, has been made recoverable by various modes: see Sections 222, 226, 227 and 232. There is nothing in the Act to show that the assessed sum becomes not recoverable during the pendency of the appeals if filed or with thefiling of the appeals. Section 254(4) is that the ' orders ' of the Income-tax Appellate Tribunal becomes ' final ' save as provided under Section 256. This finality about the ' orders ' of the appellate authority in Section 254(4) is that those cannot be further challenged by any proceeding. It says nothing about the assessment becoming ' final ' then as contended. An assessment does not lose its ' finality ' merely because of provisions in the Act to challenge its correctness by way of appeals.

5. A sum cannot be recovered if not payable. A sum payable is recoverable if there is no order staying recovery. A sum, assessed and determined as payable by the assessee on the basis of the assessment, becomes recoverable from that time. Recover ability of a tax, assessed and determined, has no connection with the appeals, permitted by the Act, against the assessment.

6. The learned advocate, appearing for the opposite party, next peated the contention that was upheld by the Revenue Divisional Commissioner in the appeal that Section 265, interpreted applying the principle of the legal maxim expressio unius est exclusio alterius, is that if the assessment is pending before the appellate authorities, the demand, based on that assessment, cannot be recovered as not being final. Section 265 says that the tax shall be 'payable' despite a reference under Section 256 or an appeal to the Supreme Court. It does not say that the tax was not payable before that stage. It has already been pointed out that the tax was payable and also recoverable from the time of default in payment after the expiry of the period in the notice of demand under Section 156, if recovery is not stayed by orders of the Income-tax Officer or the appellate authorities. Section 265 only makes it clear that the tax shall continue to be payable even if there be any reference proceedings. The Revenue Divisional Commissioner stated in his order that ' Section 265 of the Act permits continuation cf recovery proceeding ' if there is any reference under Section 256 or an appeal to the Supreme Court arising out of that reference. His view was that the recovery proceedings, in existence before the stage of reference under Section 256, was to continue, because of that section, even after a reference had been started. He, however, fell into error and exceeded the bounds of his jurisdiction when he held that recovery by summary certificate procedure was not permissible during the pendency of the appeals which preceded the reference, though recovery by other modes as provided in Sections 226, 227, 228 and 232 would, in his view, be possible.

7. The legal maxim, quoted in the Revenue Divisional Commissioner's order, has no application here, Section 265 states that the income-tax shall be payable notwithstanding that a reference under Section 256 has been made. It cannot be read or interpreted to mean that the tax was notand shall not be payable before that stage if appeals are filed. Broom on Legal Maxims, 1939 edition, at page 452, writes:

' The statute is to be construed, if possible, as to give sense and meaning to every part. It sometimes happens that in a statute, the language of which may fairly comprehend many different cases some only of those cases are expressly mentioned by way of example merely, and not as excluding others of a similar nature. So, where the words used by the legislature are general, it shall extend to other persons and things besides those actually named, and, consequently, in such cases, the ordinary rule of construction cannot property apply.'

The maxim is not of universal application. Crawford in his book The Construction of Statutes, 1940 edition, at pages 335-336, has pointed out that this maxim does not apply to matters ' where it clearly appears that something was expressly mentioned for another reason or merely because of caution ' and ' this maxim, or general principle of construction, as must be apparent, is based upon the probable intention of the legislature. Hence, where that intention clearly reveals that the law-makers did not mean that the express mention of one thing should operate to exclude all others, of course, the principle is not applicable. Consequently, when the statutory language is plain and the meaning is clear, there can be no implied exclusion. In other words, the principle is to be used as a means of ascertaining the legislature's intent where it is doubtful and not as a, means of defeating the apparent intent of the legislature '.

Maxwell on the Interpretation of Statutes, eleventh edition, at page 306 observes:

' Provisions sometimes found in statutes, enacting imperfectly or for particular cases only that which was already and more widely the law, has occasionally furnished ground for the contention that an intention to alter the general law was to be inferred from the partial or limited enactment, resting on the maxim expressio unius exclusio allerius. But, that rnaxim is inapplicable in such cases. The only inference which a court can draw front such superfluous provisions (which generally find a place in Acts to meet unfounded objections and idle doubts), is that the legislature was either ignorant or unmindful of the real state of the law, or that it acted under the influence of excessive caution. If the law be different from what the legislature supposed it to be, the implication arising from the statute. it has been said, cannot operate as a negation of its existence, and any legislation founded on such a mistake has not the effect of making that law which the legislature erroneously assumed to be so '

The legislature has made its intent clear. It has been poinfed out that the provisions of the Act are that during the pendency of the appeal the assessment exists in final form and the certificate remains in existence.

8. The interpretation sought to be given calling in aid the legal maxim is not acceptable. Mr. Pal, appearing for the petitioner, has contended, relying on the decision in Colquhoun v. Brooks, [1888] 21 Q.B.D. 52, 65 (C.A.) that the maxim ' expressio unius est exclusio alterius ' is a dangerous master to follow in the construction of statutes or documents and that the ' maxim ought not to be applied, when its application, having regard to the subject-matter to which it is applied, leads to inconsistency or injustice '.

9. The rule is made absolute. The order of the Revenue Divisional Commissioner is set aside and that of the Tax Recovery Officer on the opposite party's petition dated the 9th July, 1969, is restored. Hearing fee 10 G.Ms.

Amaresh Roy, J.

10. I agree with the order proposed by my learned brother and also with the view expressed by his Lordship on the interpretation of Section 265 of the Income-tax Act, 1961. But I will add a few words regarding the contentions raised before us.

11. This rule was issued on 20th January, 1970, on an application made under article 227 of the Constitution by the Union of India represented by the Commissioner of Income-tax, West Bengal III. It is directed against an order of the Commissioner of Presidency Division, dated 14th October, 1969, passed in Case No. 68 of 1969/70 by which the order of the Tax Recovery Officer dated 11th July, 1969, in Certificate Case No. 659-IT/A/68-69 was set aside. The rule has been opposed on behalf of the assessee, Messrs. B. C. Nawn and Brothers Private Ltd. It raises a question of jurisdiction based on provisions in several sections of the Income-tax Act and particularly Section 265 of that Act.

12. Events that lead to the case being brought up to us by application under article 227 of the Constitution may be briefly recounted.

Events:

On 9th March, 1967, the Income-tax Officer, M-Ward, Companies District IV, Calcutta, assessed the total income of the assessee-company at Rs. 2,48,658 and issued a demand notice demanding a tax of Rs. 1,32,340. On 13th April, 1967, the assessee-company filed an appeal under Section 246 of the Income-tax Act, 1961, before the Appellate Assistant Commissioner.

On 18th March, 1968, the said Income-tax Officer forwarded a certificate under Section 222(1) of the said Act to recover the said tax by certificate procedure.

On 6th December, 1968, the Appellate Assistant Commissioner dismissed the appeal.

On 8th July, 1969, the assessee-company presented a second appeal under Section 253 in the Income-tax Appellate Tribunal.

On 9th July, 1969, the assessee-company made objection before the Tax Recovery Officer against the issue of sale proclamation advertising the sale of the assessee-company's house property.

On 11th July, 1969, the Tax Recovery Officer overruled the objection and put the house property to sale.

On 19th July, 1969, the assessee-company appealed under rule 86 of the Second Schedule to the Income-tax Act, 1961, to the Commissioner, Presidency Division.

On 14th October, 1969, the Commissioner allowed the appeal.

It may also be mentioned that after the rule was issued in this court, and during its pendency the Income-tax Appellate Tribunal has decided the appeal that was pending before that Tribunal on 27th November, 1970, by reducing the total income but the contention of the assessee-company that assessment was barred by limitation has been overruled by that Tribunal. Against that order the assessee-company has applied under Section 256(1) on 2nd February, 1971, praying for a reference upon the questions, inter alia, on the ground of limitation.

13. These two later events have rendered much of the question of law raised before us academic so far as this particular case is concerned. But the impugned order of the Divisional Commissioner having laid down an interpretation of Section 265 in general terms affecting recoverability of tax assessed during pendency of an appeal, the importance of the point of law which is of general application has remained, and need be decided by this court.

14. The rule was issued only on two grounds, namely, Nos. 1 and III, mentioned in the application. Those were in these terms :

Grounds :

' I. For that the said order of the learned Commissioner, Presidency Division, is based on a patent misreading and misconstruction of the provisions bt Section 265 of the Income-tax Act, 1961.

III. For that in view of the provisions of Section 220(6) and Section 254 of the Income-tax Act, 1961, the reasoning of the learned Commissioner, Presidency Division, is not sustainable in law and as such the judgment is liable to be set aside.'

Mr. Balai Lal Pal appearing in support of the rule has assailed the view of law expressed by the Divisional Commissioner 'that if a matter were pending before a Tribunal, it cannot be recovered by summary certificate procedure '.

15. Mr. Pal points out that by the provisions in the Act, after tax has been assessed under Section 144, a notice of demand is issued underSection 156. Section 220 provides that tax is payable after 35 days from notice of demand and Section 222 provides the mode of recovery by summary certificate proceedings. By referring to several sections in several Chapters of the Act, Mr. Pal contended that a definite scheme of legislative intent clearly appears in the process of assessment that the tax assessed shall be payable on notice of demand being served on the assessee and when the defaulter is made to pay the tax assessed, it shall be recoverable by recourse to one or the other methods envisaged in Section 222. That recover ability is independent of right of appeals provided in the Act, though in Section 254 the Act provides that the order of the Appellate Tribunal shall be final. That provision of finality has not been made either at the stage of assessment by the Income-tax Officer or at the stage of first appeal to the Appellate Assistant Commissioner. According to Mr. Pal's contention, finality provided in Section 254 has no connection with recoverability of tax assessed by the Income-tax Officer. He also points out that had it not been so, the provision in Section 220(6) would be redundant and also there would be no necessity of power to stay the proceedings that has been declared by the Supreme Court in Income-tax Officer, Cannanore v. M. K. Kunhi, to vest in the Appellate Tribunal, though that power has not been expressly mentioned in Section 252(1)(c). Regarding the provision in Section 265 of the Act, Mr. Pal has argued that the proceeding by way of reference to the High Court or the Supreme Court is not proceeding for assessment of tax or its payability or recoverability. Reference is advisory jurisdiction to answer only questions of law. That is why orders made by the High Court or the Supreme Court do not enter into the proceedings for assessment and recovery of tax but has to be carried out as a statutory duty by the Income-tax Officer, as is provided in Section 260(1) and the superintending and revisory duty in that respect provided in the Act. For those reasons Mr. Pal assailed the view of the Divisional Commissioner that because in Section 265, it has been provided that tax remained payable notwithstanding pendency of any reference, it could be held that tax shall not be payable until it has been 'final' under Section 254(4). He contended that the maxim expressio unius est exclusio alterius has any application or can be resorted to for reading a negative proposition into the provision of Section 265.

16. In answering these contentions of the learned advocate for the petitioner, the learned advocate for the opposite party, Mr. Nirmal Kumar Mukherjee, endeavoured to defend the view of the Divisional Commissioner by referring to various provisions in large number of sections of the Act. Starting point of his reasons was the provision in Section 254(4), saying that the order of the Appellate 'Tribunal shall be final. From that he asked us to hold that before that stage assessment is not final. Next step of his reasoning was that at the stage the assessment is not final, it cannot be either payable or recoverable.

17. In doing so, Mr. Mukherjee encountered the hurdle in the provision of Section 220 which he was unable to ignore. To overcome that hurdle. Mr. Mukherjee contended that Section 220 is the genal provision in respect of which Section 265 is the special provision which will override the other, Then he sought to support the view of the Divisional Commissioner by invoking the maxim expressio unius est exclusio alterius.

18. I am clearly of the view that the whole process of reasoning and every particular step in that process employed by Mr. Mukherjee are fallacious and his whole argument is based on profound misconception of the basic scheme of that Act, and misapprehension of meaning, purpose and effect of several sections in that Act, on which he sought to rely. It will be burdening this judgment with incomprehensible irrelevancies to try to discuss all that Mr. Mukherjee said before us.

19. Mr. Mukherjee's initial assumption, which found favour with the Divisional Commissioner, that recoverability of tax assessed is dependent on the finality of the order of the Appellate Tribunal has no warrant in any provision of the Act and is erroneous. That assumption is contrary to the definite scheme of the Act. Assessment of tax made under Sections 143 and 144 of the Act is payable when notice of demand is served under Section 156 and is recoverable under Section 220. No doubt assessment made by the Income-tax Officer may be contested by way of an appeal under Section 246 and further appeal under Section 252. But, mere preferring of appeal and its pendency does not affect recover ability. The appellate authorities have power to make order to stay the proceedings for recovery of tax, if any, has been commenced, during the pendency of the appeal as has been held by the Supreme Court in the case of Income-tax Officer, Cannanore v. M. K. Kunhi. Unless such an order is obtained from appropriate authority, continuation of recovery proceeding does not suffer any disability by any provision in the Act. Mr. Mukherjee contended that ' an appeal' in legal parlance means the removal of the case from the Income-tax Officer to the Appellate Assistant Commissioner and, thereafter, to the Appellate Tribunal in order to test and scrutinise the correctness of the impugned assessment. It amounts in pith and essence to a complaint to a higher forum that the assessment is erroneous and that is liable to be annulled, set aside or reduced in accordance with the provisions of Section 251(1)(a) or Section 254(1) of the Income-tax Act, 1961.

20. In consequence, according to his contention, when an appeal is pending the amount of tax remains unsettled and, therefore, is neither payable nor recoverable. He projected his thesis to comprehend that on parity of his reasoning when a reference is pending, the amount of tax may also remain unsettled. Yet Section 265 clearly provides:

' 265. Tax to be paid notwithstanding reference, etc.--Notwithstanding that a reference has been made to the High Court or the Supreme Court or an appeal has been preferred to the Supreme Court tax shall be payable in accordance with the assessment made in the case.'

From that provision a deduction is sought to be made that Parliament has made an exception is so far that when a reference is pending, amount of tax though uncertain shall be payable, but at the stage of pendency of appeal, because of uncertainty of amount of tax it shall not be payable. For making that deduction the maxim exprcssio unius est exclusio alterius is sought to be employed.

21. The argument is not only by neglect of clear provisions in Section 220 which is in Chapter XIV headed ' Procedure of assessment', but also by omission to remember that Section 265 in Chapter XX is headed ' Appeals and revision' in which chapter also Sections 252 and 254 have been placed. The two chapters are not on the same subject and there is no relation between Sections 222 and Section 265 of the nature of the former being general provision and the latter special provision. Mr. Mukherjee omitted to notice that in Chapter XX, after divisions A, B, C, D and E, only in group F under the heading ' General', Section 265 occurs. Yet Mr. Mukherjee wanted us to read that section as a special provision to override Section 220 in Chapter XIV of the Act. The contention is devoid of reason and must fail.

22. Regarding applicability and use of the maxim expressio unius est exclusio alterius, I fully agree with the views of my learned brother that if not used with caution the maxim which is certainly a good and dependable servant to aid proper understanding and interpretation of the statute, may turn out to be a misleading master, as the reputed scholars. Broom and Crawford, have pointed out in their famous treatises on maxims referred to by my Lord. In the present case it has no application at all. Its primary use is when a positive and enabling or disabling provision in a statute expressly mentions one or more, but does not mention some others, then those others not mentioned are taken to have been excluded from the enabling or disabling provision, as the case may be. It does not enable us to read a negative in respect of payability of the tax assessed for which there are specific express provisions in Chapter XIV of the Act.

23. It may also be pointed out that Section 220(6) deals expressly with a situation when an appeal is pending before the Appellate Assistant Commissioner. It is true that the Act is silent in that behalf when an appeal is pending before the Appellate Tribunal. That question fell for consideration of the Supreme Court in the case of Income-tax Officer, Cannanore v. M. K. Kunhi, we have already referred to. At page 435 of the report, their Lordships of the Supreme Court held that though it is very doubtful if the power of stay can be spelt out from the provisions in Section 255(5) of the Act, it has been laid down in that judgment that:

' It could well be said that when Section 254 confers appellate jurisdiction, it impliedly grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution and that the statutory power carries with it the duty in proper cases to make such orders for staying proceeding as will prevent the appeal if successful from being rendered nugatory.'

That power of stay conferred by Section 254 as laid down by the Supreme Court, and the provisions in Section 220(6), in my view, provide complete methods by which the assessee is enabled to have adequate interim remedies during the pendency of the appeal, be it before the Appellate Assistant Commissioner or be it before the Appellate Tribunal. There is, therefore, neither any vacuum or omission in the Act in that respect, nor there is any conflict between those provisions in the Act on the one hand and Section 265 on the other.

24. It is a recognised principle of law that the mere fact of pendency of the appeal does not operate as a stay of execution, nor affects executability of the decision of the authority appealed against. That principle has received statutory recognition in the provision of Order 41, Rule 5, Civil Procedure Code. The view that found favour with the Divisional Commissioner is in violation of that wholesome principle of law which instead of being weaker, in my view, is stronger in its application to taxation and revenue laws which are of special nature. The Supreme Court in the judgment above referred to has observed :

' A certain apprehension may legitimately arise in the minds of the authorities administering the Act that if the Appellate Tribunal proceeds to stay recovery of taxes or penalties payable by or imposed on the assessees as a matter of course the revenue will be put to great loss because of the inordinate delay in the disposal of appeals by the Appellate Tribunal. It is needless to point out that the power of stay by the Tribunal is not likely to be exercised in a routine way or as a matter of course in view of the special nature of taxation and revenue laws. It will only be when a strong prima facie case is made out that the Tribunal will consider whether to stay the recovery proceedings and on what conditions and the stay will be granted in most deserving and appropriate cases where the Tribunal is satisfied that the entire purpose of the appeal will be frustrated or rendered nugatory by allowing the recovery proceedings to continue during the pendency cf the appeal.'

Conversely, any apprehension that may arise in the mind of the assessee also is quelled by judicious exercise of the power of the Appellate Tribunal dealt with by the Supreme Court in the passage above quoted.

25. For these reasons I agree with my learned brother that this rule should be made absolute, by setting aside the order of the Divisional Commissioner in its entirety.