ANTONITTO vs TAX RECOVERY OFFICER AND ANOTHER.

The judgment of the court delivered by

K. S. PARIPOORNAN J. - The petitioner in O.P. No. 2214 of 1985 (supra p. 456) is the appellant in this writ appeal. The revenue is the respondent. An order was passed to arrest and detain the appellant in civil prison under Schedule II, rule 76 of the Income Tax Act, 1961. The said order was challenged on the ground that there was no enquiry before passing the said order. Pending the O.P., exhibit P-4 order was passed. The order passed by the Tax Recovery Officer was also challenged in the O.P. Income Tax is admittedly due from the appellant for the years 1976-77 and 1977-78. The arrears come to Rs. 2,36,448. The Income Tax Officer issued a certificate on March 17, 1981, to the Tax Recovery Officer for realising the said amount. The Tax Recovery Officer issued a notice under Schedule II, rule 73 of the Income Tax Act to the appellant. He appeared before the Tax Recovery Officer along with his counsel on February 28, 1985. As could be seen from the files, the appellant and his counsel were heard. The proceedings sheet for February 28, 1985, is seen signed by the appellant. Though a warrant was issued to arrest and produce the appellant, he was released on the basis of an undertaking given at 4.40 p.m. that day. It was after appreciating the materials placed before the Tax Recovery Officer that he came to the conclusion that the appellant should be arrested and detained in civil prison. Later, he was released. These circumstances will amply prove that the Tax Recovery Officer conducted an enquiry as contemplated by Schedule II, rule 74 of the Income Tax Act before ordering the arrest of the appellant. The contention to the contrary was rightly repelled by the learned single judge.

It is conceded that the appellant appeared before the Tax Recovery Officer along with his advocate in pursuance of a notice received under rule 73(I). The Income Tax Officer as well as the appellant (defaulter) put forward their case before the Tax Recovery Officer. After considering the rival contentions, the Tax Recovery Officer came to the conclusion that the defaulter should be arrested and he passed an order under rule 76. It was then that the defaulter was arrested. He was later released for 15 days. On the expiry of that period, exhibit P-4 order was passed. A perusal of the relevant records mentioned in the judgment of the learned single judge would show that it is futile to contend that no enquiry was conducted or that the Tax Recovery Officer was not satisfied that the defaulter should be arrested and committed to civil prison.

Stress was laid before the learned single judge and also before us that the opportunity that was given to the appellant (defaulter) was insufficient and that the enquiry conducted was also perfunctory. We are unable to accept this plea. The fact that the Tax Recovery Officer conducted the enquiry and completed it on the same day itself cannot be a reason to disregard it. What is necessary is that the officer should give sufficient opportunity to the defaulter to put forward his plea and to rebut the evidence of the Income Tax Officer. When the petitioner appeared in pursuance of the notice under rule 73(I), he was and should be deemed to be aware of the purpose for which he was summoned. He was heard. His advocate was also present. If he was not ready with all materials to substantiate his case, the fault was his own. It is fairly clear that the petitioner and his advocate were heard by the Tax Recovery Officer and he conducted a proper enquiry before ordering his arrest and committal to the civil prison.

The learned single judge held that the enquiry conducted by the Tax Recovery Officer is not open to any challenge. It was held that the appellant (defaulter) was given sufficient opportunity before the order was passed. Besides, an enquiry was also conducted by the Tax Recovery Officer as contemplated by law. We see no error in the maid conclusion.

The learned single judge adverted to the finding of the Tax Recovery Officer to the effect that the petitioner had the means to pay the tax arrears from the moment the demand was created and that he refused and neglected to pay the same. Holding that it is a pure finding of fact and so not open to challenge in proceedings under article 226 of the Constitution of India, the learned single judge denied jurisdiction. We see no error in the said reasoning of the learned single judge.

The order under Schedule II, rule 76 of the Income Tax Act was passed on March 16, 1985. The petitioner was released even earlier on February 28, 1985. He undertook to appear after 15 days. The order passed under Schedule II, rule 76, is an appealable one. Under Schedule II, rule 86(I)(c), the said order, exhibit P-5, should have been appealed against instead of being assailed in this court, in proceedings under article 226 of the Constitution. The learned single judge took the said view. It is not possible for us to say that the said view is either perverse or illegal. If the petitioner failed to advance any valid or proper reason for not filing the statutory appeal that is available to him against exhibit P-5 order, that itself was sufficient to deny jurisdiction under article 226 of the Constitution of India. The writ appeal is without merit.

The writ appeal is dismissed in limine.