THAN MAL Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) This revision has been referred by a learned single Judge of this Court to the Division Bench on account of certain important questions of law arising in it.

(2.) A firm styled as Sukhdayal Ram Bilas held a decree against Basdeo Sheo Karan Das. In execution of that decree certain property belonging to the judgment-debtor was put up for sale and a sum of Rs. 28,000/- was realised and a sum of Rs. 7,078-10-0 was paid towards the decree in execution of which the property was sold and a sum of RS. 1510-5-0 was rateably distributed to certain other decree-holders. A balance of Rs. 19,411-1-0 remained in deposit with the court. That sum was attached in a number of Proceedings both before judgment and after passing of decrees. The judgment-debtor firm had been assessed to income-tax and a sum of Rs. 31,448-15-0 were due on account of the income-tax. The Income-Tax Officer of Fatehgarh by a letter dated the 14th of February, 1950 informed the Civil Judge that a recovery certificate had been issued to the Collector under Section 46 (2) of the Income-tax Act and he asked the Civil Judge that payment should be stayed in regard to the amount to various creditors of M/s Kanhaiya Lal Gajanand of Farukhabad. The Civil Judge had difficulty in tracing out the case in which the deposit in question Was made as the letter of 14th February, 1950 did not give any particulars about it. The Civil Judge accordingly by a letter dated 18th February, 1950 asked the Income-Tax Officer to supply the necessary particulars and he further asked the Income-Tax Officer to specify the provision of law under which action is called for. On the 20th of February. 1950 a writ of attachment was issued by an Assistant Collector of the district authorising the attachment of the amount towards payment of the income-tax dues; but the writ of attachment did not specify the authority to whom it has been issued. In fact the writ of attachment was not filled up in several of its particulars inclusive of the particular as to whom it was issued. On the same date, that is, on the 20th of February, 1950, a letter was addressed by the Tahsildar of Farrukhabad to the Civil Judge of Fatehgarh informing him that M/s Kanhaiya Lal Gajanand had defaulted in the sum of Rs. 31,448-15-0 as income-tax for which a demand certificate under Section 46 (2) of the Indian Income-tax Act had been received and that the distress warrant, referred to above, was being sent and it was requested that attachment may be made. After receipt of these papers the question came up before the learned Civil Judge as to whether there was any valid attachment and whether priority should be given to the Income-Tax Department for the realisation of its dues over other attaching creditors. The Civil Judge held that there was no valid attachment in the eyes of law and that no priority could be extended to the Income-Tax Department. Aggrieved by order, the Income-Tax Department preferred an appeal before the learned District Judge of Farrukhabad. The learned District Judge differed on both the points from the trial court, allowed the appeal and directed that the income-tax dues shall have the first priority over the money held in custody of the trial court. The decree-holder, Than Mal, has come up in revision to this Court against the appellate order of the District Judge.

(3.) Three points have been raised before us by learned counsel for the applicant, namely: