Harshad
Shantilal Mehta Vs. Custodian & Ors [1998] INSC 302 (13 May 1998)
Sujata
V. Manohar, S.P. Kurdukar, D.P. Wadhwa Mrs. Sujata V.Manohar, J.
ACT:
HEAD NOTE:
[With C.A. Nos. 5147/1995, 5225/1995, 5325/1995, 6080/1995,
12574/1996, T.C. (Civil) No.5/1998]
The Special Court (Trial of Offenders Relating
Transactions in Securities) Act, 1992 is a special Act with its own special
problems. The offences it deals with involve amounts of unusual magnitude
procured by brokers from banks and financial institutions. Unfortunately, the
proceedings before the Special
Court, which was set
up for a quick prosecution or adjudication of claims have been trapped in
unusual legal and interpretational difficulties generated by the casual
drafting of the Act that leaves much to the skills and good sense of the
courts. The present appeals before us relate to the interpretation of Section
11 of the Act.
Civil
Appeal No. 5225 of 1995 is filed by the Custodian appointed under the
provisions of the Special
Court (Trial of
Offences Relating to Transactions in Securities) Act, 1992 against a judgment
and order of the Special Court Judge dated 23.2.1995. The appeal is filed by
the Custodian pursuant to directions contained in the impugned judgment itself.
The other appeals have been filed by various notified persons under the Special Court (Trial of Offences Relating to
Transactions in Securities) Act, 1992 (hereinafter referred to as the 'Special
Court Act') from the same judgment and order of the Special Court Judge. A writ
petition challenging the constitutional validity of Section 11 of the Special
Court Act pending in the Delhi High Court has also been transferred to this
Court for consideration along with these appeals, as common questions of law
arise. All these appeals along with the transferred case have been heard
together. We have also heard various intervenors in these appeals.
The Special Court has observed that it has been
functioning since June 1992. In respect of two notified parties, namely, the Harshad
Mehta Group and Fairgrowth Financial Services Ltd., the time is approaching for
distribution of their assets under Section 11 of the Special Court Act, 1992.
In view of the different possible interpretations of the provisions of Section
11, the Special Court has raised certain questions of
law. After hearing all concerned parties, the Special Court has answered these questions in the impugned judgment,
somewhat in the fashion of an Originating Summons. The Custodian has raised
certain additional questions which arise in interpreting and implementing
Section 11 of the Special Court Act. The questions raised by the Special Court are as follows:
"1.
Whether the priority created by section 11 of the Special Court (Trial of Offences Relating to
Transactions in Securities) Act, 1992 is only in respect of amounts due prior
to the date of Notification and/or whether the priority would also apply to
amounts due after the date of the Notification.
2.
Whether the phrase 'taxes' as used in Section 11 of the Special Court (Trial of
Offences Relating to Transactions in Securities) Act, 1992 can only mean
amounts due as and by way of taxes or whether it would also include penalties
and interest, if any.
3.
Whether penalty and/or interest can be levied on or charged to Notified Parties
after the date of Notification." To appreciate the points at issue, it is
necessary to look briefly at the provisions of the Special Court Act. The
Statement of Objects and Reasons relating to the Act states, "In the
course of the investigations by the Reserve Bank of India, large scale
irregularities and malpractices were noticed in transactions in both the
Government and other securities, indulged in by some brokers in collusion with
the employees of various banks and financial institutions.
The
said irregularities and malpractices led to the diversion of funds from banks
and financial institutions to the individual accounts of certain brokers, (2)
To deal with the situation and in particular to ensure speedy recovery of the
huge amount involved, to punish the guilty and restore confidence in and
maintain the basic integrity and credibility of the banks and financial
institutions, the Special (Trial of Offences Relating to Transactions in
Securities) Ordinance, 1992, was promulgated on 6th June, 1992. The Ordinance
provides for the establishment of a Special Court with a sitting Judge of a High Court for speedy trial of
offences relating to transactions in securities and disposal of properties
attached. It also provides for appointment of one or more custodians for
attaching the property of the offenders with a view to prevent diversion of
such properties by the offenders." The Ordinance was replaced by the Act.
Under
Section 3 of the Special Court Act sub-sections (1), (2), (3) and (4) are as follows
:
"3.
Appointment and functions of Custodian -- (1) The Central Government may
appoint one or more Custodian as it may deem fir for the purposes of this Act.
(2)
The Custodian may, on being satisfied on information received that any person
has been involved in any securities after the 1st day of April, 1991 and one
and before 6th June
1992, notify the name
of such person in the Official Gazette.
(3)
Notwithstanding anything contained in the Code and any other law for the time
being in force, on and from the date of notification under sub-section (2), any
property, movable or immovable, or both, belonging to any person notified under
that sub-section shall stand attached simultaneously with the issue of the
notification.
(4)
The property attached under sub-section (3) shall be dealt with by the
Custodian in such manner as the Special Court may direct.
(5)................................
........................"
The Custodian has, therefore, the power to notify the names of persons involved
in any offence relating to transactions in securities after the 1st day of
April, 1991 and on or before 6th of June, 1992. On such notification all
properties of the notified person stand attached. Under Section 4, the
Custodian is given the power, if he is satisfied that any contract or agreement
entered into at any time after 1st of April, 1991 and on or before 6th of June,
1992 in relation to any property of the person notified has been entered into
fraudulently or to defeat the provisions of this Act, to cancel such contract
or agreement. On such cancellation the property shall stand attached. Both
Section 2 and 4, therefore, deal with the Custodian's powers relating to
transactions in securities entered into during a very specific period, namely,
1st of April, 1991 and on or before 6th of June, 1992 (hereinafter referred to
as the statutory period).
Under
Section 7 and 8 the jurisdiction of the Special Court in respect of prosecution of offences is confined to
offences referred to in Section 3(2) i.e. during the statutory period. Section
9-A which has been introduced by the Amending Act 24 or 1994, deals with
jurisdiction, powers, authority and procedure of the Special Court in civil matters. Under sub-section
(1) it is provided as follows :- "(1) On and from the commencement of the
Special Court (Trial of Offences Relating to Transactions in Securities)
Amendment Act, 1994, the Special Court shall exercise all such jurisdiction
powers and authority as were exercisable, immediately before such commencement,
by any civil court in relation to any matter of claim - (a) relating to any
property attached under sub-section (3) or Sec. 3;
(b)
arising out of transactions in securities entered into after the 1st day of
April 1991, and on or before the 6th day of June, 1992 in which a person notified
under sub-section (2) of Sec.3 is involved as a party, broker, intermediary or
in other manner.
(2)...................
(3)...................
(4)...................
(5)...................
Jurisdiction
of the Special Court in civil matters is, therefore, in
respect of any matter or claim relating to any property which is attached under
Section 3(2), or any matter or claim arising out of transactions in securities
entered into during the "statutory period".
Under
Section 9-B the jurisdiction of the Special Court in arbitration matters is also with reference to those
matters or claims which are covered by Section 9-A (1).
Therefore,
the jurisdiction of the Special
Court in civil as
well as criminal matters is in respect of transactions during t he statutory
period of 1st of April, 1991 to 6th of June, 1993; and in relation to the
properties attached, of a notified person. The entire operation of the said
Act, therefore, revolves around the transactions in securities during this
statutory period.
Section
11 deals with discharge of liabilities and distribution of the property
attached. It provides as follows :- "11. Discharge of liabilities - (1) Notwithstanding
anything contained in the Code and any other law for the time being in force,
the Special Court may make such order as it may deem
fit directing the Custodian for the disposal of the property under attachment.
(2)
The following liabilities shall be paid or discharged in full, as far as may
be, in the order as under :- (a) all revenues, taxes, cesses and rates due from
the persons notified by the Custodian under sub-section (2) of Sec.3 to the
Central Government or any State Government or any local authority (b) all
amounts due from the person so notified by the Custodian to any bank of
financial institution or mutual fund; and (c) any other liability as may be
specified by the Special Court from time to time." This Section obviously
deals with disbursement of properties attached under Section 3(3). Since the
property (movable or immovable or both) which is attached is of the person
notified, the liabilities which are to be paid or discharged under Section
11(2) are also liabilities of the person notified - whether these liabilities
be in respect of payment of revenues, taxes, cesses or rates, or whether they
be the liabilities to any bank, financial institution of mutual fund.
Before
the Special Court makes any order under Section 11(1)
the Special Court must be satisfied that the property
which is attached and is being disposed of, is the property belonging to the
notified persons. If any person other than the notified person has any share,
or any right, title or interest in the attached property on the date of
notification under Section 3, that right of a third party cannot be
extinguished. There is no provision in the Special Court Act which extinguishes
the right, title and interest of a third party in any property which is
attached as a consequence of a notification under Section 3. The only right
which the Custodian has, in respect of the rights of third parties in such
properties, is conferred by Section 4 under which, if the Custodian is
satisfied that any contract or agreement which was entered into by the notified
party within the "statutory period" in relation to an attached
property, is fraudulent or entered into for the purpose of defeating the
provisions of the Special Court Act, he can cancel such contract or agreement,
There is no other provision under the Special Court Act which affects the
existing rights of a third party on the date of attachment, in the property
attached. The attached property also does not vest in the Custodian. In this
regard, the position of a Custodian is different from that of an official
liquidator of a company in winding up. Had the Act provided for the
extinguishment of any subsisting rights of other persons in the attached
property, the Act could well have been considered as arbitrary or
unconstitutional (Vide C.B. Gautam v. Union
of India and Ors. (1993 (1) SCC 78 at page
105 to 110). dealings ins securities belonging to banks and financial
institutions during the relevant period and/or that there are no claims or
liabilities which have to be satisfied by attachment and sale or such property,
in our view, the Special court would have the power to direct the Custodian to
release such property from attachment". Hence a property not having any
nexus with the illegal dealings in securities can be released from attachment
by the Special Court in an appropriate case.
The
question of distribution of attached property under Section 11(2) has to be
considered thereafter. Before going into the questions raised in that
connection, one must examine whether Section 11(2) lays down any priorities.
Although
it was contended before us by some of the appellants that Section 11(2) does not
lay down any priorities, the language of Section 11(2) is quite clear.
The
words, "in order as under" in Section 11(2) lay down the properties
for distribution. In fact, it has been so held by this Court while interpreting
Section 11 in the case of B.O.I. Finance Ltd. v. Custodian & Ors. (1997
(10) SCC 488 at page 497). Referring to Section 11(2) of the Act, this Court
has said that sub-section (2) of Section 11 provides for the priorities in
which the liabilities of the notified person are to be discharged from out of
the attached properties. Considering that the Act has been passed because of
the diversion of funds from the banks and financial institutions to the
individual accounts or certain brokers, the implication of Section 11 (2) (b)
clearly is, that after the discharge of the liabilities under Section 11(2)(a),
the amounts which are paid to the banks would probably be those funds which
were diverted from the banks by reason of malpractice in the security
transactions. However, before the amounts can be paid to banks or financial
institutions under Section 11(2)(b) the liabilities under Section 11(2)(a) are
required to be discharged.
The Special Court has raised three questions
pertaining to distribution under Section 11(2). We would, however, like to
expand the three questions in order to bring out the points at issue which have
been argued before us. The questions can be reframed as follows :
(1)
What is meant by revenues, taxes, cesses and rates due? Does the word
"due" refer merely to the liability to pay such taxes etc., or does
it refer to a liability which has crystalised into a legally ascertained sum
immediately payable?
(2) Do
the taxes (in clause (a) of Section 11(2) refer only to taxes relating to a
specific period or to all taxes due from the notified person?
(3) At
what point or time should the taxes have become due?
(4)
Does the Special Court have any discretion relating to the
extent of payments to be made under Section 11(2)(a) from out of the attached
funds/property?
(5)
Whether taxes include penalty or interest?
(6)
Whether the Special
Court has the power
to absolve a notified person from payment of penalty or interest for a period
subsequent to the date of his notification under Section 3. In the alternative,
is a notified person liable to payment of penalty or interest arising from his
inability to pay taxes after his notification? The Custodian has raised certain
further questions. We propose to consider one such question which has a bearing
on the questions which have been framed by the Special Court.
The
question is whether in the case of mortgaged/pledged properties of the notified
persons already mortagaged/pledged to the banks or financial institutions on
the date of attachment, the words of Section 3 (3) "any property movable
or immovable or both belonging to any person notified" would refer only to
the right, title or interest of the notified person in the mortgaged/pledged
property and not the entire property itself. It so, the liabilities mentioned
in Section 11(2) which are to be paid from the proceeds of the sale of the
attached property, would only refer to proceeds of the sale of the right, title
and interest of the notified person in the attached property.
The
last question can be answered first. As stated above, Section 3(3) clearly
provides that the properties attached are properties which belong to the person
notified.
The
words "belong to" have a reverence only to the right, title and
interest of the notified person in that property.
It in
the property "belonging to" a notified person, another person has a
share or interest, that share or interest is not extinguished. Of course, if
the interest of the notified person in the property is not a severable
interest, the entire property may be attached. But the proceeds from which
distribution will be made under Section 11(2) can only be the proceeds in
relation to the right, title and interest of the notified person in that
property. The interest of a third party in the attached property cannot be sold
or distributed to discharge the liabilities of the notified person. This would
also be the position when the property is already mortgaged or pledged on the
date of attachment to a bank or to any third party. This, however, is subject
to the right of the Custodian under Section 4 to set aside the transaction of
mortgage or pledge. Unless the Custodian exercises his power under Section 4,
the right acquired by a third party in the attached property prior to
attachment does not get extinguished nor does the property vest in the
Custodian whether free from encumbrances or otherwise. The ownership of the
property remains as it was.
Question
No. 1 The first question on which the arguments have been advanced, relates to
the meaning of the phrase "tax due" used in Section 11(2)(a). Block's
Law Dictionary at page 499 defines the word `due', inter alia, as, "owing;
payable; justly owed............... Owed or owing as distinguished from
payable. A debt is often said to be due from a person where he is the party
owing it, or primarily bound to pay, whether the time for payment has or has
not arrived...........The word `due' always imports a fixed and settled
obligation or liability, but with reference to the time for its payment there
is considerable ambiguity in the use of the term, the precise signification
being determined in each case from the context." (underlining ours) Jowitt's
Dictionary of English Law Vol. I, 2nd Edn. at page 669 defines `due' as,
"anything owing, that which one contracts to pay or perform to
another........... As applied to a sum of money, 'due' means either that it is owing
or that it is payable; in other words, it may mean that the debt is payable at
once or at a future time. It is a question of construction which of these two
meanings the word 'due' has in a given case".
Wharton's
Law Lexicon, 14th Edn. at page 365 defines 'due' as anything owing. It has the
following comment, "It should be observed that a debt is said to be due
the instant that it has existence as a debt; it may be payable at a future
time".
Our
attention has been drawn to Section 530(1)(a) of the Companies Act where the
language used in "taxes. cesses and rates due and payable" and
Section 61(1)(a) of the Provincial Insolvency Act, 1920 which refers to all
debts due to the Crown. In the State of Rajasthan & Ors. v. Ghasilal (1965 (2) SCR 805), this Court considered the
provisions of the Rajasthan Sales Tax Act, 1955. It observed, that Section 3
which is the charging section of the Rajasthan Sales Tax Act, read with Section
1, makes tax payable i.e. creates a liability to pay the tax. That is the
normal function of a charging section in a taxing statute.
But
till the tax payable is ascertained by the Assessing Authority under Section 10
or by the assessee under Section 7(2), no tax can be said to be due. For till
then there is only a liability to be assessed to tax. A similar view was taken
by this Court in its later decision in Associated Cement Co. Ltd. v. Commercial
Tax Officer, Kota & Ors. (1981 (48) S.T.C. 466 at page 480) holding that until
the tax payable is ascertained by the Assessing Authority or by the assessee,
no tax can be said to be due; for till then there is only a liability to be
assessed to tax.
The
Federal Court in the case of Chatturam and Ors. v. Commissioner of Income-Tax,
Bihar (1947 (15) ITR 302 at page 308) held that the liability to pay the tax is
founded on Sections 3 and 4 of the Income Tax Act which are the charging
sections. Section 22 etc. are the machinery sections to determine the amount of
tax. It cited the observations of Lord Dunedin in Whitney v. Commissioners of
Inland Revenue (1926 AC 37) as follows :- "Now, there are three stages in
the imposition of a tax. There is the declaration of liability, that is the
part of the stature which determines what persons in respect of what property
are liable. Next, there is the assessment. Liability does not depend on assessment,
that ex hypothesi has already been fixed. But assessment particularizes that
exact sum which a person liable has to pay. Lastly, come the methods of recovery
if the person taxed does not voluntarily pay." (See in this connection, Kalwa
Devadattam and Ors. v. Union of India and Ors. (1963 (49) ITR 165, 171); Doorga
Prosad v. The Secretary of State (13 ITR 285, 289) and Ramyond Synthetics Ltd.
and Ors. v. Union of India and Ors. (1992 (2) SCC 255 at 286-288).
"Tax
due" usually refers to an ascertained liability.
However,
the meaning of the words 'taxes due' will ultimately depend upon the context in
which these words are used.
In the
present case, the words 'taxes due' occur in a section dealing with
distribution of property. At this stage the taxes 'due' have to be actually
paid out. Therefore, the phrase 'taxes due' cannot refer merely to a liability
created by the charging section to pay the tax under the relevant law. It must
refer to an ascertained liability for payment of taxes quantified in accordance
with law. In other word, taxes as assessed which are presently payable by the
notified person are taxes which have to be taken into account under Section
11(2)(a) while distributing the property of the notified person. Taxes which
are not legally assessed or assessments which have not become final and binding
on the assessee, are not covered under Section 11(2)(a) because unless it is an
ascertained and quantified liability, disbursement cannot be made. In the
context of Section 11(2), therefore, "the taxes due" refer to
"taxes as finally assessed".
Question
No. 2 Do these taxes relate to any particular period or do they cover all
assessed taxes of the notified person? The Special Court Act is quite clear in
its intent. It seeks to cover all criminal and civil proceeding relating to
transactions in securities of a notified person between 1st of April, 1991 and
6th of June, 1992. The Special
Court is empowered to
examine all civil claims and to try all offences pertaining to such
transactions during the said period. Under Section 3(2) it is the property of
such offenders which is attached by the Custodian and which is disbursed under
the directions of the Special
Court under Section
11(2). Clearly, therefore, as the Special Court is empowered to examine all
transactions in securities during the period 1.4.1991 to 6.61992, as also all
claims relating to the property attached, the Special Court will also have to
the property attached, the Special Court will also have to examine the tax
liability of the notified person arising during the period 1.4.1991 to 6.61992.
As the purpose of the Special Court Act, inter alia, is as far as practicable,
to safeguard the funds to which the banks and financial institutions may be
entitled, and to ensure that these funds are not done away with, there are
provisions for attachment, ascertainment of claims and distribution of funds.
However, before the liabilities of a notified person to banks and financial
institutions can be discharged, Section 11(2)(a) requires the tax liability of
the notified person to be paid. In this context the tax liability can properly
be construed as tax liability of the notified person arising out of transactions
in securities during the "statutory period" of 1.4.1991 to 6.6.1992.
If, for example, any income-tax is required to be paid in connection with the
income accruing to a notified person in respect of transactions in security
during the "statutory period", that liability will have to the banks
and financial institution.
Similarly,
in respect of any property which is attached, if any rates or taxes are payable
for the "statutory period" those rates and taxes will have to be paid
before the proceeds of the property are distributed to banks and financial
institutions. In the same manner, the liabilities to banks and financial
institutions in Section 11(2)(b) are also liabilities pertaining to the
statutory period.
However,
the extent to which liability under Section 11(2)(a) is to be discharged is
dealt with a little later.
Every
kind of tax liability of the notified person for any other period is not
covered by Section 11(2)(a), although the liability may continue to be the
liability of the notified person. Such tax liability may be discharged either
under the directions of the Special Court, under Section 11(2)(c) or the taxing
authority may recover the same from any subsequently acquired property of a
notified person (vide 1997 (9) SCC 123) or in any other manner from the
notified person in accordance with law. The priority, however, which is given
under Section 11(2)(a) to such tax liability only covers such liability for the
period 1.4.1991 t 6.61992.
Questions
No.3 At what point of time should this tax liability have become quantified by
a large assessment which is final and binding on the notified person concerned?
It is contended before us by some of the parties that only that liability which
has become ascertained by final assessment on the date of the Act coming into
force should be paid under Section 11(2)(a). Others contended that it should
have been so ascertained on the date of the notification. The third contention
is that it should have been so ascertained on the date of distribution. Since we
have held that tax liability under Section 12(2)(a) refers only to such
liability for the period 1.4.1991 to 6.6.1992, it would not be correct t hold
that the liabilities arising during this period should also be finally assessed
before 6.6.1992 (the date of the Act) or the date of the notification. It must
refer to the date of distribution. The date of distribution arrives when the Special Court completes the examination of claims
under Section 9A. It on that date, any tax liability for the statutory period
is legally assessed, and the assessment is final and binding on the notified
person, that liability will be considered for payment under Section 11(2)(a),
subject to what follows.
Question
N. 4 The next question is, whether the assessed tax liability for the statutory
period requires to be discharged in full under Section 11(2)(a) or whether the Special Court has any discretion in relation to
the extent of payment to be made under Section 11(2)(a)? The banks who have
large claims against the notified persons have strenuously urged that the
Special Court is not required to pay the tax liability in full, but has some
discretion as to the extent to which such liability will be paid. They have emphasised
the words `shall be paid or discharged in full as far as may be' in Section
11(2) as indicating some discretion in the Special Court regarding payment of
liabilities under Section 11(2)(a). They point out that at the time when the
said Act was enacted or when the Ordinance which it replaced was promulgated, the
full extent of the funds involved in malpractices leading to the diversion of
funds from banks and financial institutions to the pockets of the brokers, was
not known. Even after the submission of report by the Janakiraman Committee, a
special group known as an inter- disciplinary group was required to be set up
to trace the end use of funds involved in this fraud. Auditors were appointed
to check instances of differences where the attached assets were short of
problem exposure. It was, therefore, expected that the available funds from
attached assets would be speedily restored to the banks and financial
institutions. It was also expected that even after the discharge of tax
liabilities for the relevant period, substantial funds would be left over for being
paid to the banks and financial institutions concerned.
It is
submitted that the Act was not intended to secure taxes and, therefore, if the
Special Court finds that the tax liabilities are such, and their manner of
assessment is such, that it would result in the entire funds being paid over to
the taxing authorities, the Special Court would have discretion in deciding how
much should be paid over to the taxing authority and how much should come to
the banks and financial institutions. It is submitted with some justification
that Section 11 should be construed in the context of the purpose for which it
was framed; as was done by this Court in the case of Tejkumar Balakrishna Ruia
v. A.K. Menon & Anr. (1997 (9) SCC 123) where the Court said that if two interpretations
are possible, purposive interpretation should be resorted to. The Court in that
case held that the income or property obtained by a notified person after the
date of the notification could not be attached under Section 3(3). The
purposive interpretation in the present case is to be resorted to for the
purpose of ensuring that amounts realised from the properties attached come
back to the banks and financial institutions.
Our
attention was drawn to the provisions relating to examination of claims in
insolvency or of a company in winding up. Debts have to be proved in insolvency
before they can be considered for payment either in part of in full. Explaining
the powers of the insolvency court, this Court in The State of Punjab v. S.
Rattan Singh (1964 (5) SCR 1098 at page 1109) said, "It is well-settled
that the Insolvency Court can, both at the time of hearing t he petition for
adjudication of a person as an insolvent and subsequently at the stage of the
proof of debts, re-open the transaction on the basis of which the creditor had
secured the judgment of a court against the debtor. This is based on the
principle that it is for the Insolvency Court
to determine at the time of the hearing of the petition for Insolvency whether
the alleged debtor does owe the debts mentioned by the creditor in the
petition, and whether, if he owes them, what is the extent of those debts. A
debtor is not to be adjudged an insolvent unless he owes the debts equal to or
more than a certain amount, and has also committed an act of insolvency. It is
the duty of the Insolvency Court, therefore, to determine itself the alleged
debts owed by debtor irrespective of whether those debts are based on a
contract or under a decree of court. At the stage of the proof of the debts, the
debts to be proved by the creditor are scrutinised by the Official Receiver or
by the Court in order to determine the amount of all the debts which the
insolvent owes as his total assets will be utilised for the payment of his
total debts and if any debt is wrongly included in his total debts that will
adversely affect the interest of the creditors other than the judgment creditor
in respect of that particular debt as they were not parties to the suit in
which the judgment debt was decreed.
The
decree is not binding on them and it is right that they be in a position to
question the correctness of the judgment debt." It is on behalf of all
these creditors that the Insolvency Court or the Official Receiver scrutinises
the debts, whether claimed under a decree or otherwise. The same is the
position of a company in winding up because the rules of insolvency apply to
winding up proceedings In the case of S.V. Kondaskar v. V.M. Deshpande and Anr.
(1972 (1) SCC 438 at page 449) this Court examined the question whether under
the Income Tax Act before commencing re-assessment proceedings, leave was
required to be taken by the income tax authority of the Company Court under
Section 446 of the Companies Act, when the assessee-company was in winding up.
This Court said that the Income Tax Act is a complete code with respect to
assessment and re-assessment of income tax. The proceedings under the Income
Tax Act would not fall within the meaning of the expression `other legal
proceedings' in Section 446 and, therefore, leave would not be required of the
Company Court for commencing such proceedings. This Court, however, went on to
observe, (in paragraph 18) "We have not been shown any principle on which
the liquidation court should be vested with the power to stop assessment
proceedings for determining the amount of tax payable by the company which is
being wound up. The liquidation court would have full power to scrutinise the
claim of the Revenue after income tax has been determined and its payment
demanded from the liquidator. It would be open to the liquidation court then,
to decide how far, under the law, the amount of income tax determined by the
department should b e accepted as a lawful liability on the funds of the
company in liquidation. At that stage the winding up court can full safeguard
the interests of the company and its creditors under the Act".
Explaining
this decision, this Court (a bench of two judges) in the case of Assistant
Commissioner of Income Tax v. A.K. Menon & Ors. (1995 (5) SCC 200) held
that the Special Court under the present Act has no power to sit in appeal over
the orders of Tax Authorities, Tribunals or Courts. The claims relating to tax
liabilities of a notified person are, along with revenues, cesses and rates,
entitled to be paid first in the order of priority and in full as far as may
be.
While
we respectfully agree with the finding that the Special Court cannot sit in
appeal over the assessment of taxes by the Tax Authorities, we would like to
qualify the Court's subsequent observations relating to payment in full of all
assessed taxes under Section 11(2)(a). There is undoubtedly no question of any
reopening of tax assessments before the Special Court. There is also no
provision under the Special Court Act for proof of debts as in Insolvency.
The
provisions in the Special Court Act for examination of claims are under Section
9A. A claim in respect of tax assessed, therefore, cannot be reopened by the
Special Court. The liability of the notified person to pay the tax will have to
be determined under the machinery provided by the relevant tax law. The extent
of liability, therefore, cannot be examined by the Special Court.
But
the Special Court can decide how much of that liability will be discharged out
of the funds in the hands of the Custodian. This is because the tax liability
of a notified person having priority under Section 11(2)(a) is only tax
liability pertaining to the "statutory period".
Secondly
payment in full may or may not be made by the Special Court depending upon
various circumstances. The Special Court can, for this purpose examine whether
there is any fraud, collusion or miscarriage of justice in assessment
proceedings. The assessee who is before the Special Court, is a person liable
to be charged with an offence relating to transactions in Securities. He may
not, in these circumstances, explain transactions before t he income-tax
authorities, in case his position is prejudicially affected in defending
criminal charges. Then, on account of his property being attached, he may not
be in a position to deposit the tax assessed or file appeals or further
proceedings under the relevant tax law which he could have otherwise done.
Where the assessment is based on proper material and pertains to the
"statutory period", the Special Court may not reduce the tax claimed
and pay it out in full.
But if
the assessment is a "best judgment" assessment, the Special Court may
examine whether, for example, the income which is so assessed to tax bears
comparison to the amounts attached by the Custodian, or whether the taxes so
assessed are grossly disproportionate to t he properties of the assessee in the
hands of the Custodian, applying the Wednesbury principle of proportionality.
The Special Court may in these cases, scale down the tax liability to be paid
out of the funds in the hands of the Custodian.
Although
the liability of the assessee for the balance tax would subsist, and the Taxing
Authorities would be entitled to realise the remaining liability from the assessee,
the same will not be paid in priority over the claims of everybody else under
Section 11(2)(a). If the Special Court so decides, it may direct payment of the
balance liability under Section 11(2)(c). Otherwise the taxing authorities may
recover the same from any other subsequently acquired property of the assessee
or in any other manner in accordance with law. Such scaling down, however,
should be done only in serious cases of miscarriage of justice, fraud or
collusion, or where tax assessed is so disproportionately high in relation to
the funds in the hands of the Custodian as to require scaling down in the
interest of the claims of the banks and financial institutions and to further
the purpose of the Act. The Special Court must have strong reasons for doing
so. In fact, the Income Tax Authorities have also accepted that exorbitant tax
demands can be ignored, applying the Wednesbury Principles.
Question
No. 5 One other connected question remains: whether "taxes" under
Section 11(2)(a) would include interest or penalty as well? We are concerned in
the present case with penalty and interest under the Income Tax Act. Tax,
penalty and interest are different concepts under the Income Tax Act. The
definition of "tax" under Section 2(43) does not include penalty or
interest. Similarly, under Section 157, it is provided that when any tax,
interest, penalty, fine or any other sum is payable in consequence of any order
passed under this Act, the Assessing Officer shall serve upon the assessee a
notice of demand as prescribed. Provisions for imposition of penalty and
interest are distinct from the provisions for imposition of tax. Learned
Special Court judge, after examining various authorities in paragraphs 61 to 70
of his judgment, has come to the conclusion that neither penalty nor interest can
be considered as tax under Section 11(2)(a). We agree with the reasoning and
conclusion drawn by the Special Court in this connection.
Question
No. 6 The Special Court has, in the impugned judgment, also dwelt at some
length on the question whether it can absolve a notified person from imposition
of penalty or interest after the date of the notification. Since the
liabilities covered under Section 11(2)(a) are only liabilities arising during
the period 1.4.1991 to 6.6.1992. and do not cover penalty and interest, this
question does not really arise.
In any
case, interest or penalty for any action or default after the date of the
notification, are not covered by the Act. However, we must reiterate that a
taking statute is a code in itself for imposition of tax, penalty or interest.
The
remedy of a notified person who is assessed to penalty or interest, after the
notified period, would be to move the appropriate authority under the taxing
statute in that connection. If it is open to him under the relevant taxing
statute to contend that he was unable to pay his taxes on account of the
attachment of all his properties under the Special Court Act, and that there is
a valid reason why penalty or interest should not be imposed upon him after the
date of notification, the concerned authorities under the Taxing Statute can
take notice of these circumstances in accordance with law for the purpose of
deciding whether penalty or interest can be imposed on the notified person.
The
Special Court is required to consider this question only from the point of view
of distributing any part of the surplus assets in the hands of the Custodian
after the discharge of liabilities under Section 11(2)(a) and 11(2)(b). The
Special Court has full discretion under Section 11(2)(c) to decide whether such
claim for penalty or interest should be paid out of any surplus funds in the
hands of the Custodian.
This,
we hope, answers all questions which arise for determination in the present
appeals. Pursuant to an interim order dated 26.8.1996, certain payments have
been made to Income Tax Authorities. The Income Tax Authorities, however, have
given an undertaking which is filed by the Secretary (Revenue) in the Ministry
of Finance, Union of India, that the Union of India shall, within four weeks f being
called upon so to do, either by this Court or by the Special Court in this or
any other proceeding under the Special Curt Act, bring back to Court the moneys
s paid r part r parts thereof as directed, and pay thereon interest at a rate
not less than 18% per annum as this Court or the Special Court may direct from
the date of receipt until the date of return thereof. The Special Court shall
examine the claim of the Income Tax Authorities for taxes due under Section
11(2)(a) in the light of our judgment and decide whether any amount paid to the
Income Tax Authorities under the interim orders of this Court requires to be
returned. The Special Court shall pass appropriate orders thereon in the light
of the undertaking given.
This
Court, by an order dated 11.3.1996, had also directed the Custodian to draft a
scheme in respect of the shares held by the Custodian whereby such shares can
be sold from time to time. The Custodian was also directed to forwarded the
scheme for the approval of the Union of India.
Pursuant
to these directions, then Custodian forwarded a draft scheme` for approval to
the Union of India. The Ministry of Finance, Department f Economic Affairs
(Banking Division) approved the draft scheme sent by the Custodian with certain
modifications. The final scheme incorporating the modifications by the Union of
India has been filed in this Court. This scheme, with further modifications, if
any, shall be considered by the Special Court and appropriate orders may be
passed by the Special Curt in respect of the scheme so submitted.
In
view of the interpretation which we have put on Section 11 of the Special Court
Act and Section 3(3) of the Special Court Act, the challenge to the
constitutional validity of Section 11 read with Section 3(3) does not survive.
If, according to any of the banks or financial institutions, any of the
properties attached belongs to the bank or financial institution concerned, it
is open to that bank or financial institution to file a claim before the
Special Court in that connection and establish its right to the property
attached or any part thereof in accordance with law. Obviously, until such a
claim is determined, the property attached cannot be sold or distributed under
Section 11. Transfer Case No. 5 of 1998 is, therefore, dismissed.
All
the appeals are disposed of as above with no order as to costs.
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