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Ganesh Chandra Dhur Vs. Commissioner of Income-tax, West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 1662 of 1954
Judge
Reported inAIR1958Cal642,62CWN151,[1959]35ITR84(Cal)
ActsIncome-tax Act, 1922 - Sections 29, 41 and 41(2)
AppellantGanesh Chandra Dhur
RespondentCommissioner of Income-tax, West Bengal and ors.
Appellant AdvocateAnil Kumar Sinha and ;Somendra Chandra Bose, Advs.
Respondent AdvocateBalal Lal Pal, Adv. (for Nos. 1 and 2) and ;Anil Kumar Das Gupta and Pradyot Kumar Banerjee, Advs. (for Nos. 3 and 4)
Excerpt:
- .....that is, the applicant in this case. the, receiver, therefore, is a notional assessee and the beneficiary is the real assessee. section 41(2) makes the position further clear that even where there is a receiver, then: may be a direct assessment on the beneficiaries or there may be a direct recovery from the beneficiaries although the assessment was in the name of the receiver. i am, therefore, unable to hold that the applicant is not an assessee or a person liable to pay under the income-tax act the demand made and to satisfy the certificate.10. i need only conclude by saying that the applicant did not exhaust the remedies provided in the public demands recovery act. he did go before the certificate officer who rejected his prayer. but then he did not go in appeal to the collector,.....
Judgment:
ORDER

P.B. Mukharji, J.

1. This is an application by Ganesh Chandra Dhar for a writ in the nature o certiorari to bring up the records of the Certificate Case No. 1782 J. T. of 1947-48 and for a writ of mandamus directing the respondents to forbear from giving effect to the certificate.

2. The facts briefly arc as follows: In May 1950 the petitioner with his brother filed a suit in the High Court being Suit No. 1108 of 1940 in the Original Side for partition, accounts, cancellation of the deed of arpannama and other reliefs. In that suit the receivers were appointed to take charge of the properties and business of the parties to the suit. The receivers also have been as-sessed to income-tax in respect of the estate. The suit was ultimately compromised by a consent decree on 30-8-1944. But the receivers were discharged on 8-7-1946.

3. The certificates which are now being challenged by the petitioner relate to the assessment years' 1942-43. Now, the facts about these assessments are that they were completed on 4-7-1946, four days before the Receivers were discharged and the demands were issued on 28-7-1946 after the discharge of the receivers.

4. The applicant's grounds for challenging the certificate are set out in paragraph 14 of his petition. The substance of his complaint is that he is not an assessee in the technical sense of the term under the Income-tax Act, but the receivers were the assessees. His argument is that the income-tax for the period in question being assessed against the joint receivers the issue of certificate relating thereto for realisation of the dues against the petitioner was illegal and without jurisdiction.

5. Proceeding with the account of facts, it is necessary to state that at the time when the receivers were being discharged the joint receivers approached the Income-tax officer and explained that the funds in their hands had already been made over to the Commissioner before receipt of the demand notice. It was then agreed as between one of the joint receivers and the Income-tax Officer that as all the five beneficiaries including, the applicant were jointly and severally responsible for the dues in question, the tax demand should be split up into five equal carts and necessary challan should be sent to each one of them for paying up their individual shares. The letter of Tarak Chandra Dhar dated 28-6-1948, one of the joint receivers, to the Income-tax Officer proves these facts. The challans were thereupon sent by registered post to each one of the five brothers. Four of the brothers of the petitioner duly paid their respective shares of the tax. It is only the petitioner who did not pay. He is now taking the legal point that he was not the assessee.

6. The facts that the challans were separately made, that the names of the certificate-debtors were substituted replacing the receivers and inserting the names of the five brothers are facts not disputed by the applicant.

7. It is necessary to refer both to the Public Demands Recovery Act and the Income-tax Act in this connection though the reference need only be very brief. Under Section 3(1) of the Public Demands Recovery Act 'certificate debtor' means the person named as debtor in a certificate filed under this Act, and includes any person whose name is substituted or added as debtor by the Certificate Officer. It is therefore, clear that substitution or addition could be made by the Certificate Officer. Section 41 of the Income-tax Act expressly provides that in the case of a receiver the tax shall be levied upon and recoverable from such receiver with the significant expression

'in the like manner and to the same amount as it would be leviable upon and recoverable from the person on whose behalf such income, profits or gains are receivable and all the provisions of this Act shall apply accordingly'.

By Sub-section (2) of Section 41 it is expressly provided that nothing contained in Sub-section (1) shall prevent either the direct assessment of the persons on whose behalf income, profits or gains are receivable or therecovery from such person of the tax payable in respect of such income, profits or gains. As I read these provisions of the Income-tax Act it seems to me to be quite clear that there is no tiling objectionable or illegal in the present case. The assessments were being made in respect of years when the receivers were in possession. Therefore, the receivers were the assessees, but the assessments were completed just four days before the receivers were discharged. The notices of demand were issued after the discharge of the receivers. Therefore, in such a case having regard to the express language of Sub-section (2) of Section 41 it seems to me that the recovery of the tax could be made from the beneficiaries.

8. Here in this case the applicant has no merit to support him. In fact, the agreement to split up the assessment into five equal shares is not disputed. In fact, it appears it was acted upon by four of the applicant's brothers. The Fact is not disputed also that there was notice of demand under separate challans.

9. The argument on behalf of the applicant that it is necessary to be an assessee before income-tax could be realised from a person has many limitations. The very word 'assessee' has got its meaning in the context of the Act. Sub-section (2) of Section 2 of the Income-tax Act defining 'assessee' says that it means a person by whom income-tax or any other sum of money is payable under this Act and includes every person in respect of whom any proceeding under this Act has been taken for the assessment of his income. Section 29 of the Income-tax Act dealing with the notice of demand uses the expression 'assessee or other person liable to pay such tax'. The other person may he any person whose liability is provided for in the Income-tax Act. Among such other person it is obvious that the receiver under Section 41 is one, but the assessment of the receiver is expressly said to be in the like manner and to the same amount as it would be leviable and recoverable from the beneficiary, that is, the applicant in this case. The, receiver, therefore, is a notional assessee and the beneficiary is the real assessee. Section 41(2) makes the position further clear that even where there is a receiver, then: may be a direct assessment on the beneficiaries or there may be a direct recovery from the beneficiaries although the assessment was in the name of the receiver. I am, therefore, unable to hold that the applicant is not an assessee or a person liable to pay under the Income-tax Act the demand made and to satisfy the certificate.

10. I need only conclude by saying that the applicant did not exhaust the remedies Provided in the Public Demands Recovery Act. He did go before the Certificate Officer who rejected his prayer. But then he did not go in appeal to the Collector, the Commissioner and the Board of Revenue as provided in the Public Demands Recovery Act.

11. For these reasons this application is dismissed and the Rule is discharged. Interim order, if any, is vacated.

12. There will be no order as to costs.


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