KAPURCHAND SHRIMAL versus TAX RECOVERY OFFICER, HYDERABAD & ORS.

Citation: [1969] 1 S.C.R. 691 · Decided: 14-08-1968 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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691 
A 
KAPURCHAND SHRIMAL 
v. 
TAX RECOVERY OFFICER, HYDERABAD & ORS. 
August 14, 1968 
B 
[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.) 
Income-tax Act (11 of 1922)-Hindu undivided family-Defaults in 
payment of tax-Whether Karta can be detained. 
A Hindu undivided family committed default in payment of income-
tax, and a certificate fdr recovery of tax due to the family was issued by 
the Income Tax Office in exercise of the power conferred by rule 76 01. 
C 
Sch. II of the Income Tax Act, 1961. The Tax Recovery Officer directed 
the arrest and detention in prison of the karta of the family for non-pay-
ment of tax. The Karta then moved a petition in the High Court of 
Andhra Pradesh challenging his detention on the ground that he was not 
a defaulter. 
The petition was rejected. 
The Karta appealed. 
He also 
moved a petition under Art. 3 2 of the Constitution in the Supreme Court 
for an order for his release from custody. 
D 
E 
F 
G 
HELD :-The Legislature having treated a Hindu undivided family 
as a taxable entity distinct from the individual members constituting it, 
and proceedings.for assessment and recovery of tax having been taken 
against the Hindu undivided family, it was not open to the Tax Recovery 
Officer to initiate proceedings against the manager of the Hindu undivided 
family for his arrest and detention. The manager by virtue of his status 
is competent to represent the Hindu undivided family, but on that account 
he cannot for the purpose of s. 222 of the Act of 1961 he deemed to he 
the assessee when assessment is made against the Hindu undivided family 
and certific~te for recovery is also issued against the family. [695 B-D] 
For the purposes of cl. (a) of s. 2(7) the person against whom, 
any proceeding under the Act has been taken is deemed an assessee : but 
that postulates that the proceeding should he lawfully taken against the 
person before he may be deemed to he an assessee for the purpose of s. 
222 or r. 2 and r. 73. There is no provision in the Act which deems the 
manager to be the assessee for the purpose of assessment and 
recovery 
of tax, when the income of the Hindu undivided famfly of which he is the 
Manager is assessed to tax. Nor is there any provision in the Act enabling 
the Income-tax Officer or the Tax Recovery Officer to treat the manager 
of the Hindu undivided family as an assessee in default in respect of tax 
due by the Hindu undivided family. The Legislature has again made no 
provision for recovery of tax · by resort to the personal property of the 
manager of the Hindu undivided family assessed to tax or by his arrest 
and detention for default by the family in paying the tax due. [695 H-
6960] 
CIVIL APPELLATE/ORIGINAL JURISDICTION : 
Civil Appeals 
Nos. 1319 and 1320 of 1966. 
H 
Appeals by special leave from the judgments and orders dated 
February 16, 1966 and February 1, 1966 of the Andhra Pradesh 
High Court in Writ Appeals Nos. 143 of 1966 and 166 of 1965 
r~spectively and Writ Petition No. 103 of 1966. 
L13Sup.CI/68-13 
• 
()92 
SUPREME COURT REPORTS 
(1969] I S.C.R. 
Petition under Art. 32 of the Constitution of India for the 
A 
enforcement of fundamental rights. 
B. C. Misra, Om Prakash Gupta and M. V. Goswami, for the 
appellant/petitioner (in all the matters). 
B. Sen and R. N. Sachthey, for the respondent (in all the 
matters). 
The J udgrnent of the Court was delivered by 
B 
Shah, J .. Kapurchand Shrimal-a Hindu undivided family-
.committed default in payment of income-tax due by it for the 
assessment years 1955-56 to 1959-60. 
The Income-tax Officer, 
Special Investigation Circle, Hyderabad, issued certificate on 
C 
June 16, 1959, under s. 46 of the Income-tax Act, 1922, for 
recovery of tax due by the family. 
Pursuant to the certificate, 
properties of the Hindu undivided family movable and immovable 
and outstandings were attached for realizing the tax dues. 
In exercise of the powers conferred by r. 76 of Sch. JI of the 
D 
Income-tax Act, I 96 I, the Tax Recovery Officer directed on 
August 10, 1965, that Kapurchand Shrimal manager of the family 
be detained in civil prison for fifteen days. 
The manager then 
moved a petition in the High Court of Andhra Pradesh against 
the order of detention. 
The petition was rejected by a single 
Judge of th.e High Court holding that the manager had, in con-
E 
travention of r. 16(2) of Sch. II of the Income-tax Act, 1961, 
dealt with the properties of the family after receiving notice of
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