DOORGA PROSAD CHAMARIA Vs. SECRETARY OF STATE

JUDGEMENT

(1.) This is an appeal from the judgment and decree of the High Court at Calcutta, in its Civil Appellate Jurisdiction, dated 16 January 1941, by which the decree of the First Subordinate Court of Howrah, dated 31 July, 1936, was set aside. The only question which arises in the appeal is whether a certificate dated 1st April 1933, issued under the provisions of the Bengal Public Demands Recovery Act, 1913, is a valid certificate. The appellant in his case claims further that the certificate, if originally valid, became unenforceable by reason of matters which occurred after the filing of the suit; but their Lordships are of opinion that the relief claimed in this suit must be confined to matters existing at the date when the suit was instituted.

(2.) On 27 February 1933, the appellant was assessed to income-tax and super-tax by the Income-tax Officer, Howrah, under the provisions of the Income-tax Act, 1922, for the years 1928-29,1929-30 and 1930- 31, the assessments being made under the provisions of S. 23, sub-s. (4). Notices of demand were issued and tax for the year 1928-29 was paid by the appellant, but the tax for the remaining two years remained due. Penalties were imposed by the Income-tax Officer under S. 46, sub-s. (i), Income-tax Act, and certain recoveries were made. It is not necessary to consider these matters in detail since it is not the appellant's case that nothing was due from him at the date of the disputed certificate, and the exact amount due is not in issue in this appeal. On 29 March 1933, the Income-tax Officer, purporting to act under the power conferred by S. 46, sub-s. (2), Income-tax Act, addressed to the Collector a certificate certifying that the sum of Rs. 3,86,529-1-0 due from the appellant on account of income-tax, super-tax and penalty was in arrear, and requesting the Collector to recover the amount as if it were an arrear of land revenue. The effect of this certificate was to make the claim against the appellant a public demand within the meaning of the Bengal Public Demands Recovery Act, 1913, by virtue of S. 3, sub-s. (6) of the Act and cl. (3) of Sch. 1. The relevant provisions of the Bengal Public Demands Recovery Act, 1913, and the Rules made thereunder are as follows: Section 4 provides that when the certificate officer is satisfied that any public demand payable to the Collector is due he may sign a certificate in the prescribed form stating that the demand is due and cause the certificate to be filed in his office. Section 5 provides that when any public demand payable to any person other than the Collector is due, such person may send to the certificate officer a written requisition in the prescribed form. Section 6 provides for the recovery of a demand in respect of which a requisition has been made under S. 5. Section 7 provides that when a certificate has been filed in the office of a certificate officer under S. 4 or S. 6, he shall cause to be served upon the certificate-debtor, in the prescribed manner, a notice in the prescribed form and a copy of the certificate. Section 9 enables the certificate-debtor within the time limited to present a petition to the certificate officer denying liability, in whole, or in part, and S. 10 provides for the hearing of such petition. Section 34 empowers the certificate-debtor at any time within six months from the service upon him of the notice required by S. 7 or if he files a petition under S. 9 denying liability from the date of the determination of the petition to bring a suit in the civil Court to have the certificate cancelled or modified. Section 35 states the grounds on which a certificate may be cancelled or modified by the civil Court. By S.38 the rules in sch. 2 are given statutory effect.

(3.) Rule 79 provides that every Certificate Officer shall cause to be kept in his office a register of certificates filed in his office under the Act and shall cause particulars of all such certificates to be entered in such register, and S. 84 provides that the forms set forth in the appendix shall be used with such variations as circumstances may require. On 1 April 1933, the Certificate Officer of Howrah signed a certificate, stated to be under Ss. 4 and 6, Bengal Public Demands Recovery Act. The certificate stated on its face that it was filed in the office of the Certificate Officer of Howrah, and followed the form given in the appendix to the Act. In col. 2 the name of the certificate holder was stated to be "Income-tax Officer, Howrah" and in col. 4 the amount of the demand was stated to be Rs. 3,86,529-1-0 and in col. 5 the particulars given were "Income-tax and penalty." On the same day the Certificate Officer ordered the issue of notice under S. 7 of the Act, and on 1st May the appellant filed objections to the certificate proceedings under S.9 of the Act. On 1 August the Certificate Officer passed orders holding the certificate to be invalid, but this order was set aside by the Collector on 7 September 1933, and the case was remanded to the Certificate Officer. The order of the Collector was finally upheld by the Commissioner on 18 December 1933. On 7 September 1933, the Certificate Officer passed the following orders: Amend the certificate and put down Secretary of State for Income-tax Officer, Howrah in col. 2 of the certificate, and reduce the amount of the certificate by Rs. 3875 as in the petition of 27 June 1933. Issue notice under S.7, Public Demands Recovery Act, upon the debtor at once.