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Suburban Bank, Ltd., in Re. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Reported in[1953]24ITR67(Cal)
AppellantSuburban Bank, Ltd., in Re.
Excerpt:
- .....are not entitled to claim the sum of rs. 11,017 in preference to the other creditors of the bank. the income-tax authorities are entitled to their claims, namely, to the sum of rs. 18,848-10-0, rs. 3,938-2-0 and rs. 26,726-8-0 but they will rank as ordinary creditors.i cannot at the same time allow the contention of the liquidator namely, that the assessment in respect of the year 1947-48 for which a demand notice was given under section 29 on 22nd december, 1949, should be re-opened by this court. in the affidavit field by the liquidator before me he has not asked for 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. roy, appearing for.....
Judgment:
ORDER

I make the following order :-

The payment of the Provident Fund to Mr. Chowdhuris 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.

I declare that Mr. Chowdhuris clients, namely-

1. Provash Chandra Cheena of No. 12, Proddonath Lane, Calcutta, 2. Amal Kumar Chatterjee of No, 28/IB, 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 entittled to their wages from 1st May upto the end of August, 1948, and they 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.

With regard to the sum of Rs. 11,017 which was demanded by the Income-tax authorities on 14th January, 1948, under Section 18A of the Income-tax Act, I hold that the said authorities are not entitled to preferential payment under Section 230 of the Commission Act. In my opinion the said sum which was demanded under Section 18A of the meaning of the said section. It is an amount payable in advance within respect of tax before it become 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 of the Income-tax. This also evident found due and payable then the Government shall have to return the amount paid or the excess with interest at 2 per cent annum from the date of payment to the date of such assessment.

In any event having regard to the fact that the since the date of the issue of the notice under Section 18A a regular assessment had taken place on 20th December, 1949, and a notice of demand dated 22nd December, 1949, for the sum of Rs. 26,726-8-0 found due on such assessment has been issued on the liquidator, the question of compliance with notice under Section 18A dated 14th January, 1948, no longer subsists, and what is now due and payable is under and because of the assessment dated 20th December, 1948, and the notice dated 22nd December, 1948. In my opinion, therefore, the Income-tax authorities are not entitled to claim the sum of Rs. 11,017 in preference to the other creditors of the bank. The Income-tax authorities are entitled to their claims, namely, to the sum of Rs. 18,848-10-0, Rs. 3,938-2-0 and Rs. 26,726-8-0 but they will rank as ordinary creditors.

I cannot at the same time allow the contention of the liquidator namely, that the assessment in respect of the year 1947-48 for which a demand notice was given under Section 29 on 22nd December, 1949, should be re-opened by this court. In the affidavit field by the liquidator before me he has not asked for 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. Roy, 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 field by the Liquidator, it has neither been alleged that the 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).

'When a person is sui juris judgment against him is very strong prima facie evidence against him of the existence of 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 proceedings to reopen an assessment which has been made by the Income-tax authorities. It is up to 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.

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.

Mr. Dass client will be paid in accordance with the order of Bachawat, J.

Rs. 716 be returned to the parties whose ornaments were pledged with the bank and sold by the bank.

Mr. Dass client will pay his own costs; Mr. Chowdhurys clients re entitled to costs settled at Rs. 250. Government will pay its own costs. The Liquidator will get his costs of this application as between attorney and client, certified for counsel. Liquidator will get his costs before the Referee assessed at Rs. 100. Let the application to be taxed as of a motion.

Ordered accordingly.


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