S.R. Das Gupta, J.
1. I make the following order:
(a) The payment of the Provident Fund to Mr. Chowdhuri's clients will be made on the basis that the total amount, as appearing in the books of the Bank, contributed by the staff and by the Bank is Rs. 25,615-12-0.
(b) I declare that Mr. Chowdhuri's clients, namely -
1. Provash Chandra Cheena of No. 12, Froddonath Lane, Calcutta, 2. Amal Kumar Chatterjee of No. 287 1B, Jhamapukur Lane, Calcutta, 3. Ashit Ranjan Das of No. 57, Cossipore Road in the suburbs of Calcutta, 4. Dilip Kumar Ghosh of No. 17, Jhamaphukur Lane, Calcutta, 5. Rajendra Kumar Chakraborty of No. 6, Muralidhar Sen Lane, Calcutta, 6, Sushil Kumar Majumdar of No. 19, Strand Road, Calcutta., 7. Kanai Charan Maity of No. 12, Bipradas Street, Calcutta, are entitled to their wages from 1st May upto the end of August 1948 and they will rank as preferential creditors in respect of wages for the last two months i.e. July and August 1948 and for the wages for the remaining months they would be treated as ordinary creditors.
The Liquidator will be entitled to settle the claims of other employees if and when they make their claims. The Liquidator will write to Court and obtain directions.
(c) With regard to the sum of Rs. 11,017/-which was demanded by the Income-tax authorities on 14-1-1948 under Section 18A, Income-tax Act, I hold that the said authorities are not entitled to preferential payment under Section 230, Companies Act. In my opinion the said sum which was demanded under Section 18A, Income tax Act, was not a tax which became due and payable within the meaning of the said section. It is an amount payable in advance in respect of tax before it became due. It would become due after regular assessment. This in my opinion is the real character of the payment to be made under Section 18A, Income tax Act. This is also evident from the fact tbat if on regular assessment nothing or a lesser amount is found due and payable then the Government shall have to return the amount paid or the excess with interest at 2 p. c. per annum from the date of payment to the date of such assessment.
2. In any event having regard to the factthat since the date of the issue of the noticeunder Section 18A a regular assessment has taken placeon 20-12-1949 and a notice of demand dated 22-12-1949 for the sum of Rs. 26726/8/- found due onsuch assessment, has been issued on the Liquidator the question of compliance with noticeunder Section 18A dated 14-1-1948 no longer subsistsand what is now due and payable is under andbecause of the assessment dated 20-12-1948 andthe notice dated 22-12-1948. In my opinion, therefore, the Income-tax authorities are not entitled toclaim the sum of Rs. 11,0177- in preference to theother creditors of the Bank. The Income-taxauthorities are entitled to their claims,namely, to the sum of Rs. 18,848-10-0Rs. 3.933-2-0 and Rs. 26,726-8-0 but they will rankas ordinary creditors.
3. I cannot at the same time allow the contention of Liquidator namely, that the assessment in respect of the year 1947-48 for which a demand notice was given under Section 29 on 22-12-1949, should be re-opened by this Court. In the affidavit filed by the Liquidator before me he has not askedfor it, nor has any material been produced before me to support his present contention, namely, that the said assessment has not been a proper assessment. It was only at the hearing before me that Mr. Boy, appearing for the Liquidator, contended that the said assessment should be re-opened. I am unable to accept that contention. It must be established by the assessee that the assessment has been an improper one. As I said before, in the affidavit filed by the Liquidator it has neither been alleged that the assessment ought to be reopened nor has any material been given which would justify me in holding that the said assessment should be reopened. In this connection I would refer to the following observation of Cotton L. J. made in the case of --'ex parte Kibble. In re Onslow' (1875) 10 Ch. A 373. (A).
'When a person is 'sui juris' judgment against him is very strong 'prima facie' evidence against him of the existence of a debt, if he disputes it, he must satisfy the Court that there is some reason which requires that the judgment should be set aside.'
In my opinion, the same principle ought to apply in a case where an assessee wants in winding up proceeding to re-open an assessment which has been made by the income-tax authorities. It is upto him to show that there is some reason which requires the assessment to be set aside. I, therefore, negative the contention of the Liquidator on this point.
4. In making payment to any of the employees the 'Liquidator would be entitled to set off any claim which the Bank may have against the said employee.
5. Mr. Das's client will be paid in accordance with the order of Bachawat J:
6. Rupees 716/- be returned to the parties whose ornaments were pledged within the Bank and sold by the Bank.
7. Mr. Das's client will pay his own costs, Mr.Chowdhury's clients are entitled to costs settledat Rs. 250/-. Government will pay its owncosts. The Liquidator will get his costs of thisapplication as between Attorney and client, certified for counsel, Liquidator will get his costsbefore the Referee assessed at Rs. 100/-. Let theapplication be taxed as of a motion.