Kerala H.C : The petitioner in OP No. 2214 of 1985 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 Sch. II, r. 76 of the IT Act, 1961.

Counsel Appeared

Kurian, for the Petitioner : P.K. Ravindranatha Menon & N.R.K. Nair, for the Respondents

S. PARIPOORNAN, J.:

The petitioner in OP No. 2214 of 1985 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 Sch. II, r. 76 of the IT Act, 1961. The said order was challenged on the ground that there was no enquiry before passing the said order. Pending the OP, Ext. P-4 order was passed. The order passed by the TRO was also challenged in the OP 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 ITO issued a certificate on 17th March, 1981, to the TRO for realising the said amount. The TRO issued a notice under Sch. II, r. 73 of the IT Act to the appellant. He appeared before the TRO along with his counsel on 28th Feb., 1985. As could be seen from the files, the appellant and his counsel were heard. The proceedings sheet for 28th Feb., 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 TRO 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 TRO conducted an enquiry as contemplated by Sch. II, r. 74 of the IT 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 TRO along with his advocate in pursuance of a notice received under r. 73(I). The ITO as well as the appellant (defaulter) put forward their case before the TRO. After considering the rival contentions, the TRO came to the conclusion that the defaulter should be arrested and he passed an order under r. 76. It was then that the defaulter was arrested. He was later released for 15 days. On the expiry of that period, Ext. 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 TRO 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 TRO 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 ITO. When the petitioner appeared in pursuance of the notice under r. 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 TRO 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 TRO 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 TRO as contemplated by law. We see no error in the said conclusion.

The learned single judge adverted to the finding of the TRO 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 Art. 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 Sch. II, r. 76 of the IT Act was passed on 16th March, 1985. The petitioner was released even earlier on 28th Feb., 1985. He undertook to appear after 15 days. The order passed under Sch. II, r. 76, is an appealable one. Under Sch. II, r. 86(I)(c), the said order, Ex. P-5, should have been appealed against instead of being assailed in this Court, in proceedings under Art. 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 Ext. P-5 order, that itself was sufficient to deny jurisdiction under Art. 226 of the Constitution of India. The writ appeal is without merit.

The writ appeal is dismissed in limine.

[Citation : 171 ITR 461]