1988 PLP 673 (PTD)

1943-44 Rs.1,903/-/- 13-12-1949 1944-45 Rs.22,261/10/- 12-1-1952 1945-46 Rs.40,218/13/- 27-4-1952 1945-46 U/S.34 Rs.2,297/13/- 27-2-1952 1946-47 U/S .34 Rs.11,715/.14/.- 27-2-1952 1946-47 Rs,22,280/10/- 27-2-1952 His main grievance was that in none of these cases the demand was made within the prescribed period of one year as envisaged by section 46(7) of the Income-tax Act, 1922, and section 21 of the Excess Profits Tax Act, 1940. Since allegedly those demands were made beyond the prescribed period, he claimed that he was not liable therefore. The Authorities, however, intended to take coercive measure to effect the recovery and hence the suit.

3. Maintainability of the suit wasp seriously challenged on behalf of the respondents contending that it was barred under the provisions of the Income-tax Act, 1922. It was denied if any of the demands was made beyond the prescribed period. Rather it was explained treat a demand of Rs.24,433/5/- was made on the 8th of July, 1947, under section 14(1) of the Excess Profits Tax Act 1940, and the certificate for its recovery was issued on the 27th of October, 1947, that 'is within the prescribed period. This amount was said to have been reduced to Rs.11,171 on the 13th December, 1939, in. an appeal preferred by the plaintiff and as such no fresh certificate was needed in this case. It was added that demand of Rs.43,810/5/- under the Income-tax Act, relating to the assessment year 1-943-44 was made on the 22nd of March, 1947 and a certificate thereabout was issued on the 4th of November, 1947, after the same was reduced to Rs.171, 7/6/- on the 15th of July, 1947 by taking proceedings under section 35 of the Act. Similarly it was urged that demand of RsA6,560/6/-, relating to assessment year 1944-45 created on the 22nd of March 1947 was subsequently reduced under section 35 ibid, on the 15th of July, 1947, to Rs.22,261/10/- and that certificate for its recovery issued on the 4th of November, 1947, was quite within time. In regard to the assessment year 1945-46 the initial demand of Rs.51,943/13/- created on the 10th of July, 1947, was sought to be recovered through a certificate dated the 9th December, 1947, that is within the prescribed period of one year. This demand was later reduced to Rs.40,258/1/- on the 27th of February, 1952, but the certificate issued earlier sufficed. The demand for the said assessment year was revised and a further amount of Rs.2,297/13/- was claimed on the 27th of February, 1952. Certificate for its recovery was issued on the 18th of March, 1953, again in time. Lastly, in relation to the assessment year 1946-47 initially a demand of Rs.28,269 was created on the 17th of June, 1948, but it was reduced to Rs.22,283/10/- in Revision on the 27th of February, 1952. Its certificate as well was said to have been issued within time. There was a further demand for the said year to the tune of Rs.19,122/14/- dated the 27th of February, 1.952 and for the same a fresh certificate was issued on the 18th of March, 1953. It was added that the objection in regard to the issuance of certificates beyond the prescribed period was raised by the deceased plaintiff before the defendants-Authorities in his application dated the 10th of September, 1962, but it was repelled and hence it could not be challenged in the Civil Court.

4. Appropriate issues were framed on these pleadings and the trial Court dismissed the suit primarily because it was held to be barred by section 67 of the Income-tax Act, 1922. The learned Additional District Judge in appeal dissenting with the trial Court on the point of section 67 ibid, held it to be barred under sections 54 and 56 of the Specific Relief .act, inasmuch as no injunction as prayed in the suit could issue in a matter where the loss apprehended could be compensated in money. He noted that 'the arrears of income-tax after all was a money matter and involved no irreparable loss so as to justify issuance of a permanent injunction. He further observed that the appellant could contest the liability after making deposit of the amount and that in any event relief of injunction could not be claimed. For this reason he opined that the plaint should have been rejected under Order VII, Rule 11, C.P.C.

5. The reason prevailing with the learned Additional District Judge as to why section 67 ibid did not hit the suit was that no "assessment" was being assailed in it. Instead, according to his interpretation, the suit was based upon the provisions of section 46(7) of the said Act which made it obligatory that no recovery under the Act shall be commenced after expiration of (one year) from the last day of the financial year in which such a demand was made. A perusal of the plaint supports this contention inasmuch as the various demands were asserted to have been raised after the period of one year prescribed by this section. However, the learned Additional District Judge referred to a number of documents especially EXhS.D1 to D18 showing that not only the demands were communicated to the plaintiff at the proper time, but also the necessary certificates for recovery of the arrears were sent to the Collector within the prescribed period of one year. This period was extended to two years but it had no application to the demands in question as these were raised-before 1958 when the amendment to that effect was made in the provision. Thus, as matter of fact the finding recorded by him was that all the certificates sent for recovery were issued within time. He sought support from the statement of D.W. Shaukat Ali Babar, the I.T.O. concerned, who categorically deposed to having issued the said certificates in time. As a consequence he dismissed the appeal though on a little different premise.

6. The main ground urged in support of the R.S.A. was that the official documents D1 to D9 had not been squarely proved either by Muhammad Mukhtar D.W.1 or "the I.T.O. D.W.2 and that reliance upon them by the Courts below was sheerly misplaced. No doubt the admission of these documents was subject to objection raised during the course of statement of Muhammad Mukhtar D.W.1 (page 33 of the main file) and the same was based chiefly on the ground that the original record had been either officially deleted or unofficially destroyed. The I.T.O. D.W.1 conceded that the Record-Keeper Ishaq Bhatti had deliberately destroyed this record and that he was dismissed from service for this reason. Learned counsel argued that when admittedly the original had .been destroyed, it was not possible to obtain its copies in the shape of D.1 to D.19 and, therefore, all those were fake or forged. This objection was duly considered by the learned Additional District Judge in the impugned judgment. The I.T.O. D.W.2 explained at length that though the original orders demand orders or notices had been destroyed, yet those were entered in the file or the connected registers and, therefore, the copies tendered in evidence were taken from that record. One may not lose sight of the fact that there may be various files and registers in which those proceedings were recorded. If the original were somehow missing the entries at least in the recovery register pertaining to the relevant years could easily be pressed into service to prove arrears. This is what the I.T.O. D.W.2 tried to explain and there was no reason to brush aside his version altogether. Thus, the entries shown in the Exhibits are nothing but excerpts from the official record and were rightly admitted. There was no evidence in rebuttal excepting a bald statement of an attorney of the deceased plaintiff and the same obviously did not suffice to exclude those documents from evidence. Lastly, the point was one of fact, concurrent finding on which could not be disturbed in second appeal.

7. The period prescribed for the impugned dem8nas under section 46(7) of the Income-tax Act, 1922 was then one year, although it was enlarged to two years in 1958 but that would not be relevant here. The documents D.1 to D.19 singularly establish that not only the demands were made in time but also the certificates issued fort, the relevant years were within one year of the expiry of the relevant financial year. The objection in this behalf was rightly spurned.

8. In the estimation of the trial Court, section 67 of the Income-tax Act, 1922, applied making the suit unsustainable. The lower appellate Court, however, invoked sections 54 and 56 of the Specific Relief Act holding that the claim for injunction in a matter like the present one involving money did not lie. I would, however, add that the suit did not lie for yet another reason, namely, that the special remedy contemplated by section 33-A of the said Act was admittedly not availed. It provided right of Revision and ordinarily should have been availed of. The appellant did not claim to have taken any steps to try his stance before the Revisional Authority. The cardinal rule as laid down in Central Government through the Income-tax Officer,. Dera Ismail Khan v. Sher Muhammad Khan and others P L D 1971 Pesh. 153 and Abdul Aziz v. Syed Arif Ali and 6 others P L D 1978 Lah. 441 is that a suit would .not lie if remedies prescribed by a special Statute were not availed. There is no reason why not to apply the dicta of these cases to the present suit. 'Thus, even if there was some illegality in the impugned recovery, it could not be avoided by resorting to a civil suit.

9. The impugned judgment did not appear to be capricious, fanciful or arbitrary to call for interference in second appeal. The rule laid down in Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another P L D 1970 SC 139 and Kanwal Nain and 3 others v. Fateh Khan and others P L D 1983 SC 53 although ordinarily applicable to Revisions will be available for application to this case too. There was nothing illegal on the part of the lower Courts to accept the official record.

10. There is no substance in the appeal and the same is dismissed with costs throughout. A.A./M-779/L Appeal dismissed.