JAGADISAN J. - The petitioner prays for the issue of a writ of prohibition or other appropriate writ, order or direction to forbear the Special Deputy Tahsildar, Coimbatore, the first respondent, from proceeding with the sale of the joint family properties of the petitioner and his brother. The second respondent is the First Additional Income-tax Officer, Coimbatore.
The petitioner is the manager of a Hindu undivided family consisting of himself and his brother. His father, Kandaswami, was a partner in a firm of partnership styled Palaniandavar and Co. The other partners of the firm were : 1. Ammasai Gounder and 2. Subbanna Gounder. The business of the partnership consisted in supplying jaggery to several distilleries. Kandaswami died in December, 1945. The Prohibition Act put an end to the distillery business and the firm of Palaniandavar and Co. had necessarily to wind up their business. The income-tax department discovered the existence of the firm only in March, 1945, and issued notice under section 22(2) of the Income-tax Act on 6th December, 1945, to all the partners. The partner, Subbanna Gounder, filed a return on the 16th February, 1946, showing an income of Rs. 26,913-3-7. A notice under section 23(2) was issued on 18th February, 1946, asking the partners to appear on 23rd February, 1946, asking the partners to appear on 23rd February, 1946, with the books of the firm. The books were not produced as they were alleged to have been filed in the civil suit by the firm against A. T. T. Sons, a firm of distillery business, for recovery of amounts due for the supply of jaggery. The proceedings before the Income-tax Officer underwent several adjournments. The assessments was completed on 25th August, 1948. Section 34 proceedings were initiated for the assessment years 1944-45, 1946-47 and 1947-48 and the assessments for the these years were also completed. The partner, Ammasai Gounder, filed appeals against these assessment orders to the Appellate Assistant Commissioner. By order dated 13th December, 1948, the appellate authority modified the orders of the Income-tax Officer. The result was that the assessment for 1944-45 was cancelled; a reassessment was made for the assessment year 1944-45. The total tax levied by the Appellate Assistant Commissioner is as follows :
There was a further appeal to the Income-tax Appellate Tribunal by the partners of the firm but without success. The partners have therefore to pay a total tax of Rs. 28,297-7-0. During the pendency of these proceedings of 30th March, 1946, an advance tax of Rs. 4,783-9-0 have been paid. The balance of tax due for the four years was Rs. 23,513-14-0.
A certificate under section 46(2) of the Act was issued by the Income-tax Officer to the Collector on 28th January, 1949, for the collection of the arrears of tax by attachment and sale of the properties of the partners. As a result of this certificate the family properties of the petitioner were attached and brought to sale. Notice was served by the first respondent on the petitioner for recovery of the arrears of tax due by Kandaswami, the deceased partner of the firm. The joint family properties of the petitioner were actually brought to sale and a sale was held. Thereafter the petitioner paid the amount of arrears and the sale was set aside.
It is a writ of prohibition that is asked for in this case. The petitioner contends that the first respondent has no jurisdiction to collect the tax by bringing to sale his family properties, as he is not an assessee, and as it cannot be said that even if he is an assessee he is a defaulter in the matter of payment of tax. The petitioner has not attacked the validity of the assessment order itself, though in the course of the arguments before us, the learned counsel for the petitioner submitted that the assessment was bad because Kandaswami, the father of the petitioner, was deed on the date of the assessment. The contention of the department is that the assessment is on the unregistered firm of Palaniandavar and Co., and that the validity of the assessment order cannot be called in question by reason only of the fact that one of the partners was dead, the firm itself having been sufficiently represented by the surviving partners. If the order of assessment were to be viewed as having been made under section 44 of the Act, it would be very difficult to hold that in so far as the assessment order fixed any liability of tax on the deceased, Kandaswami, it would be valid or proper. But it is, however, unnecessary for us to go into the validity of the assessment order at this stage. In our opinion, a writ should issue in favour of the petitioner on the simple ground that he cannot be deemed to be defaulter liable to pay arrears of tax, if any tax is due and recoverable from him. Section 45 of the Act provides :
'Any amount specified as payable in a notice of demand under sub-section (3) of section 23A or under section 29, or an order under section 31 or section 33, shall be paid within the time, at the place and to the person mentioned in the notice or order, or if a time is not so mentioned, then on or before the first day of the second month following the date of the service of the notice or order, and any assessee failing so to pay shall be deemed to be in default .....'
It is clear that there can be a default only after the service of a notice of demand. Section 46 enacts that when an assessee is in default in making a payment of income-tax, the Income-tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from the assessee and that the Collector on receipt of such certificate shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue. The jurisdiction of the Income-tax Officer under section 46(2) to issue a certificate to the Collector arises only when there are arrear of tax due and when the assessee has committed default.
In Myitkyina Trading Depot v. Deputy Tahsildar, a Division Bench of this court held as follows :
'Certificate under section 46(2) of the Act could be issued only if the assessee was in default; and under section 45 the petitioner firm could not have been in default when there was no due services of the notices of demand issued under section 29. These notices were served by affixture to the residence of the partners, when it was known or should have been known that they were still in Burma..... The issue of the certificate and the further proceedings of the revenue authorities were without jurisdiction.'
In this case, it is admitted by learned counsel for the department that there was not notice of demand against the petitioner for the payment of arrears of tax under section 29 of the Act.
It is, therefore, clear that the certificate issued by the Income-tax Officer under section 46(2) which formed the basis for the revenue department to proceed against the family properties of the petitioner is invalid. Though it was a writ of prohibition that the petitioner has asked for, in our opinion, the more appropriate relief would be to set aside the certificate issued under section 46(2) of the Act. We must observe that we are not expressing any opinion on the validity or otherwise of the assessment order itself. A writ of certiorari will issue quashing the certificate issued by the Income-tax Officer under section 46(2) of the Act, in so far as it is directed against the petitioner. There will, however, be no order as to costs.