SETHANI CHHOTI DEBI Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this Rule the petitioner asks for an order under article 227 of the Constitution of India quashing an order of attachment passed in certificate case No. 348/i. T. (C) /55-56 by the Certificate Officer, 24-Parganas, alipore. The petitioner was assessed to income-tax and super-tax for the assessment year 1951-52 amounting to rs. 13,997/8/ -. On a requisition made by the Income Tax Officer under section 46 (2) of the Indian Income Tax Act, 1922 the Certificate Officer signed a certificate dated March 31, 1956 under section 4 of the Bengal Public Demands recovery Act, 1913 stating that the demand is due from the petitioner to the Union of India and on the same date directed the entry of the certificate in Register X and the issue of a notice under section 7 of the Act. A notice under section 7 dated April 4, 1956, was served upon the petitioner on or about May 1, 1956. The certificate case was adjourned from time to time and on April 4, 1961 the Certificate Officer made an order for attachment of a sum of Rs. 2366-40 np. lying to the credit of the petitioner's account with messrs. Hindusthan Mercantile Bank of 201 Mahatma Gandhi Road, Calcutta. On May 23, 1961, the petitioner applied to the Certificate Officer for cancellation of the order for attachment order on the ground that (a) the notice under section 7 had not been served upon her and (b) further execution of the certificate was barred by the law of limitation. The petition was fixed for hearing on June 6, 1961. By his order dated june 6, 1961 the Certificate Officer dismissed the petition on the ground that (a) the petition was barred and (b) no one appeared in support of the petition at the time when it was taken up for hearing. The order sheet however noted that a lawyer appeared on behalf of the petitioner at 2 P. M. on the same date. An appeal preferred by the petitioner under section 51 (1) (b) was dismissed by the Commissioner, Presidency Division by his order dated May 1, 1961. The Commissioner held that (a) the notice under section 7 was duly served upon the petitioner and that (b) the petition was time-barred. The point that the petition is liable to be dismissed on ground that no body appeared before the Certificate Officer is no longer pressed by the opposite parties. A revision petition preferred by the petitioner under section 53 (1)was summarily dismissed by the Board of Revenue by its order dated November 2, 1961 without issuing any notice to the petitioner and fixing a date for hearing of the revision petition. The petitioner obtained this rule on February 27, 1962. The form of the certificate dated March 31, 1956 issued in this case is as follows:

(2.) THE certificate was signed on and was dated March 31, 1956 whereas the notice under section 7 was signed on and was dated April 9, 1956. The petitioner contends that the certificate as also the notice under section 7 are rendered invalid by reason of the fact that they were not signed on and do not bear the same date. We are unable to accept this contention. The notice under section 7 need not be signed on the same date on which the certificate is signed. The notice was dated April 9, 1956 as it was signed on that date. A notice issued on April 9, 1956 could not be correctly dated March 31, 1956. The body of the notice stated that "a certificate. . . . . . has this day been filed in my office. " The order dated March 31, 1956 directed the entry of the certificate in the register. But it is not known when the certificate was actually entered in that register and was filed in the office of the Certificate Officer. Assuming that the certificate was filed in the office on March 31, 1956 and that the statement in the body of the notice that it was filed on April 9, 1956 was incorrect, I am of the opinion that this defect did not invalidate the notice for the reasons given in my judgment in C. R. Cases Nos. 4583 to 4586 of 1960. The defect has not caused any prejudice to the petitioner. From the copy of the certificate served upon the petitioner along with the notice, she could find that the certificate was signed on March 31, 1956. The defect, if any, is cured by the West Bengal Act XI of 1961.

(3.) ON behalf of the petitioner it is next contended that the notice under section 7 was not served upon her. The service return of the bailiff dated May 1, 1956 shows that the notice was accepted by the petitioner's son R. P. Dudhwala. The Commissioner rightly rejected the contention that the petitioner had no son by the name of R. P. Dudhwala. The Commissioner has found that the petitioner was duly served with the notice and we see no reason to interfere with that finding. Rule 2 in schedule II of the Bengal public Demands Recovery Act, 1913 is as follows: