Somnath Iyer, J.
1. These nine Writ Petitions pose common question which could be disposed of by common judgment. The petitioners are assessees in whose cases assessments were made under the provisions of the Indian Income-tax Act, 1922, which will be referred to as the old Act, and with respect to some of them there was imposition of a penalty also under the old Act. Notices of demand for the payment of the amounts due from them were also issued under Section 29 of that Act and on 'their committing default in the payment of the amounts, certificates were issued in all these cases under Section 222 of the Income-tax Act, 1961, which will be referred to as the new Act for the recovery of the amounts due.
2. It was in this situation that the tax recovery officer commenced proceedings for the recovery of these amounts under Section 222 and we are asked by the petitioners to 'quash the notices of demand issued by him and to forbid the recovery.
3. Mr. Srinivasan appearing for the petitioners contends that the recovery proceedings commenced by the tax recovery officer were beyond his competence since they were not preceded by notices of demand under Section 156 of the new Act arid also on the further' ground that the certificates forwarded by the concerned Income-tax Officers under Section 222 of the new Act were forwarded beyond the period of limitation prescribed by Section 231 of the new Act. He advanced the further contention that the certificates forwarded in that way by the Income-tax Officer had no efficacy since when they were so forwarded no tax recovery officer had yet been appointed under Section 2(44)(iii) of the new Act.
4. It is undisputed that the assessments made under the old Act were properly made with respect to antecedent periods since Section 297(2)(a) of the new. Act does authorise those assessments. But, it was maintained by Mr. Srinivasan that with respect to the amounts due under these assessments, notices of demand could have been issued only under Section 156 of the new Act and not under Section 29 of the old Act. In support of this postulate, Mr. Srinivasan appealed to the pronouncement of the Supreme Court in Third Income-tax Officer Mangalore v. M. Damodar Bhat, : 71ITR806(SC) in which the elucidation made was that even with respect to an assessment under the old Act a notice of demand under Section 156 of the new Act could issue. But, that enunciation does not support the proposition that a notice of demand with respect to an assessment made under the old Act could issue only under Section 156, of the new Act and that the notice of demand issued under Section 29 of the old Act is not a good notice.
5. But, it was maintained that the tax recovery officer to whom certificates were issued under Section 222 of the new Act in all these cases, acquired no power to make the recovery since the certificates issued under Section 222 of the new Act were not preceded by further notices of demand under Section 156 of the new Act.
6. While this branch of the argument which rested again on Section 156 of the new Act is advanced in all these nine writ petitions, the plea of limitation is urged in only two of them namely writ petitions Nos. 478 and 480 of 1967. It was said that since no certificate could be issued under Section 222 of the new Act unless an assessee is in default or is deemed to be in default in making payment of tax and since an assessee could be deemed to be in default under Section 222 of that Act only in the event of non-payment of the amount specified in a notice issued under Section 156 of that Act within the period to which Section 220(1) refers, -- and there was no such notice in any of these cases, -- the Income-tax Officer did not have the competence to forward any certificate under Section 222 of the new Act. The relevant portions of Section 220 read:
'220 (1) Any amount, otherwise than by way of advance tax, specified as payable in a notice of demand under Section 156 shall be paid within thirty-five days of the service of the notice at the place and to the person mentioned in the notice.
****(4) If the amount is not paid within the time limited under Sub-section (1) or extended under Sub-section (3), as the case may be, at the place and to the person mentioned in the said notice, the assessee shall be deemed to be in default.'
Section 222(1) reads:
'222(1) When an assessee is in default or is deemed to be in default in making a payment of tax, the Income-tax Officer may forward to the Tax Recovery Officer a certificate under his signature specifying the amount of arrears due from the assessee, and the Tax Recovery Officer on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein by one or more of the modes mentioned below in accordance with the rules laid down in the Second Schedule.'
7. It was, urged that it is clear from these statutory provisions that an assessee is deemed to be in default under the new Act only when there is a notice under Section 156 of the new Act and there is non-payment within the period of thirty-five days to which Section 220(1) refers.
8. Although the new Act, like the old Act, does not explain when an assessee is in default as contrasted with an assessee who is deemed to be in default, it is, we think, clear that both under the old Act as well as under the new, there can be no default unless there is a notice of demand either under Section 29 of the old Act or under Section 156 of the new Act as the case may be and there is no payment within the prescribed time.
9. But, in the case of all the assessees before us, they were clearly in default under the provisions of the old Act since they made no payments within the period specified in the notices of demand issued under Section 29 of the old Act. There are two reasons why we think that in that situation it was not necessary for the Income-tax Officer to issue another notice of demand under Section 156 of the new Act before he could forward a certificate to the Tax Recovery Officer under Section 222(1) of the new Act. The first is that since the assessment under the old Act is authorised by Section 297(2)(a) and a notice of demand with respect to that assessment under the old Act is similarly authorised by that statutory provision, it would be an act of supererogation on the part of the Income-tax Officer to issue an-other notice of demand under Section 158 of the new Act.
10. If even after the new Act came into force the default comes into being on non-compliance with the notice of demand issued under Section 29 of the old Act which is clearly authorised by the new Act, that de-fault, in our opinion, is a default within the meaning of Section 222 of the new Act from which emanates the power in the Income-tax Officer to forward a certificate to the recovery Officer. It is not necessary that another default should again come into being under Section 220(4) of the new Act to clothe the Income-tax Officer with the authority to forward a certificate under Section 222 of the new Act. The default which springs from non-payment of the amount demanded under the notice of demand under Section 29 of the old Act, has, in our opinion, the same status as a default arising out of non-payment in compliance with the demand under Section 156 of the new Act.
11. The other reason which impels oar
view that the certification under Section 222 of the new Act were good certificates rests upon the clear provision of Section 297(2)(j) of the new Act which reads:
'297 (2) (j): Any sum payable by way of income-tax, super-tax, interest, penalty or otherwise under the repealed Act may ba recovered under this Act, but without prejudice to any action already taken for the recovery of such sum under the repealed Act.'
The meaning of this clause is that all sums payable under the old Act could be recovered under the new Act and such recovery under the new Act is what is regulated by Section 222 of the new Act which authorises the tax recovery officer to make such recovery on a certificate being forwarded to him by the concerned Income-tax Officer.
12. Now, when the assessees became defaulters by reason of their disobedience to the demand made in the notices issued under Section 29 of the old Act, the sums of money specified in these notices of demand became payable within the meaning of clause (j) to Section 297(2) of the new Act and so their recovery became possible under the new Act, Section 222 of which, authorises such recovery. That recovery could be made tinder the new Act by the tax recovery officer whose power to make such recovery does not, to any extent, depend on the receipt by him of yet another certificate under Section 156 of the new Act. What makes him the repository of power to make the recovery is Section 297(2)(j) of the new Act under the provisions of which the only step to be taken by the concerned Income-tax Officer who has already issued a notice under Section 29 of the old Act, is, to forward a certificate to the tax recovery officer under Section 222 of the new Act, and, that is precisely what the Income-tax Officer did in the cases before us.
13. So, we negative the contention that the certificates issued under Section 222 of the new Act which were not preceded by notices of demand under Section 156 of the new Act have no efficacy.
14. But, it was said that when certificates under Section 222 were forwarded by the Income-tax Officer in all the cases before us, the person who made the impugned demands had not yet become a tax recovery officer since he was appointed as such only on May 25, 1966, by which time all the certificates had been forwarded. So, it was conceded that the Collector of the concerned District to whom the certificates were forwarded and who was a tax recovery officer as defined by Section 2(44)(j), was the person who could make the recovery and not the tax recovery officer subsequently appointed.
15. Mr. Rajashekhara Murthy appearing for the department made a submission that this contention in that form is not raised in any of the writ petitions and that we should not allow the petitioners to raise that new matter for the first time during the argument.
16. But, we think that the objection to the power of the tax recovery officer who has made the impugned demands is too technical to merit acceptance, and even otherwise, we think that we should not accept it. Section 2(44) defines a tax recovery officer. It speaks of three species of tax recovery officers. The first is the collector or an additional collector, the second is a person appointed as a tax recovery officer by the 5tate Government, and, the third one is one appointed by the Central Government or by a State Government authorised by the Central Government to make an appointment. In a given case, all these three tax recovery officers may be functioning as such tax recovery officers in a particular area, and in another case, while there may be only one tax recovery officer when a certificate is forwarded under Section 222 of the new Act, another may subsequently get appointed for the same area. But, even if there is a plurality of tax recovery officers in a particular area, although there was only one when the certificate was forwarded under Section 222 of the new Act, all those tax recovery officers exercise the same power which resides in them under Section 222 of tie new Act read with Section 2(44). The power of recovery, which, is authorised by Section 222 is a concurrent power which resides in all of them, and we do not accede to the argument that only that tax recovery officer named in the certificate forwarded under Section 222 could proceed with the recovery of the amount specified in the certificate.
17. So, a recovery proceeding commenced by one tax recovery officer named in the certificate could, we think, be continued by another tax recovery officer of the same area and a new certificate under Section 222 of the new Act with respect to such recovery is, in our opinion, scarcely necessary. We are, therefore, of the opinion that the tax recovery officer who made the impugned demand did not stand denuded of his power to make the recovery merely for the reason that when the certificates were forwarded, they were forwarded to the concerned Deputy Commissioners of the District who were then the only tax recovery officers.
18. Now, what survives for discussion is the plea of limitation. This plea, as we have already observed, arises only in Writ Petitions 478 and 480 of 1967 and became available to the petitioners by reason of certain dates mentioned in the notices of demand. In the demand made by the lax recovery officer in Writ Petition No. 478 of 1967 the date of the certificate was specified as March 26, 1964 whereas it now transpires that that date is a mistake for March 23, 1963. Mr. Srinivasan to whom the original certificate was made available by Mr. Rajashekhara Murthy did not therefore press the contention in this case. Similarly, it transpires from the counter-affidavit produced on behalf of the department that although the tax recovery officer's demand mentions March 4, 1964 as the date of the certificate in Writ Petition No. 480 of 1967, there was an earlier certificate which was issued on March 23, 1964 pursuant to rectification of the assessment. That being so, Mr. Srinivasan does not ask us to say that any question of limitation arises in this case either.
19. So we dismiss these writ petitions. No costs.