Posted On by &filed under High Court, Madras High Court.

Madras High Court
Commissioner Of Income-Tax vs Binny And Co. on 5 September, 1927
Equivalent citations: AIR 1927 Mad 1039


1. What we are asked to determine is the meaning of the words “tax was recovered” in Section 50, Indian Income-tax Act. It is contended by the assessee that the word “recovered,” which ordinarily has the meaning of “taking back” must refer to the repayment of tax in the United Kingdom, referred to in Section 49, and that the words “tax was recovered” must be read as meaning “tax was refunded to the assessee under the provisions of Section 27, Finance Act, 1920.” Unfortunately for this contention we see that Section 50 is applicable not only to Section 49, but also to Section 48; and if we are to apply this meaning of the word “recovered” to Section 48, it would mean that when a person had obtained a refund under Section 48 he is given under Section 50 another year within which to apply for that same refund. This certainly makes nonsense of these two sections. The word “recovered” does not necessarily mean the actual taking back of what has been given as is obvious from its use throughout the Income-tax Act. In Section 18 (8) which deals with “deduction” of tax in advance, it is observed that:

the power to levy by deduction under this section shall be without prejudice to any other mode of recovery.

implying thereby that deduction is one mode of recovery.

2. Similarly, under Section 41, tax is “recoverable” from the Court of Wards, Administrator-General, etc., and there it does not mean “taken back.” It is suggested that tax can only be “recovered” by coercive process. The Act does provide for recovery by coercive process, but, even then, there is no taking back of what has been given any more than when the tax is received by voluntary payment. Possibly, there is an implication in the word “recover” that the tax is a sum which has to be deducted out of the income as really belonging to Government, and in that sense the word “recovered” would bear the meaning of “taking back.” Section 44(a) is also a very strong argument against the assessee’s contention as to the meaning of the word “recovered.” We are, therefore, satisfied that the words “tax was recovered” mean “tax was received by the Government,”

3. It has been pointed out to us that this interpretation may cause hardship in individual cases where there has been delay on the part of the income-tax authorities in England in making the refund there, such delay not being due to the default of the assessee. We would point out that this hardship can only be obviated by an amendment of Section 50, and we are of opinion that this should be done by giving the Income-tax Commissioner power to extend the time in suitable cases. The petitioner will pay the costs of this application, i. e., counsel’s fee Rs. 250.

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