M.M. Dutt, J.
1. This rule is at the instance of the revenue and it is directed against the order of the Presidency Divisional Commissioner.
2. On March 26, 1969, the Income-tax Officer, Companies District IV, Calcutta, ' M ' Ward, forwarded a certificate for the recovery of advance tax from the opposite party under Section 222(1) of the Income-tax Act, 1961, hereinafter referred to as the Act, for the sum of Rs. 6,926 in respect of the financial year corresponding to the assessment year 1967-68. The certificate was issued by the Income-tax Officer as the opposite party defaulted to pay the said sum of money on account of advance tax. The opposite party opposed the certificate proceeding by a petition of objection. It was, inter alia, contended by him that the Income-tax Officer had no jurisdiction to issue the certificate or to realise advance tax under the provisions of the Act. By his order dated April 8, 1969, the Income-tax Officer overruled the said contention and rejected the petition of objection. The Commissioner, Presidency Division, on appeal by the opposite party against the said order of the Income-tax Officer, took a different view. It was, inter alia, held by him that advance tax was not tax within the meaning of the Act and the same was not recoverable before the completion of the assessment. In that view of the matter, he allowed the appeal and set aside the certificate. Hence this rule.
3. The principal question that arises for our consideration is whether advance tax is recoverable before the amount of tax payable by the assessee is finally assessed. Section 207 of the Act provides for the advance payment of tax. Section 209 lays down the mode of computation of advance tax payable by the assessee for any financial year and Section 210 provides for the passing of an order for payment of advance tax by the assessee and issued a notice of demand under Section 156 pursuant to the order, specifying the instalments in which the advance tax is payable under Section 211. Under Sub-section (2) of Section 212, the assessee may send a revised estimate of the advance tax payable by him before any one of the dates specified in Section 211 and adjust any excess or deficiency in respect of any instalment already paid in a subsequent instalment or in subsequent instalments. Section 218(1) provides that if any assessee does not pay on the specified date any instalment of advance tax that he is required to pay under Section 210 and dees not, before the date on which any such instalment as is not paid becomes due, send under Sub-section (1) or Sub-section (2) of Section 212 an estimate or a revised estimate of the advance tax payable by him, he shall be deemed to be an assessee in default in respect of such instalment or instalments. The next relevant provision of the Act is Section 219 which is as follows :
' Any sum, other than a penalty or interest, paid by or recovered from an assessee as advance tax in pursuance of this Chapter shall be treated as a payment of tax in respect of the income of the period which would be the previous year for an assessment for the assessment year next following the financial year in which it was payable, and credit therefor shall be given to the assessee in the regular assessment :
Provided that where, before the completion of the regular assessment, a provisional assessment is made under Section 141A, the credit shall be given also in such provisional assessment.'
4. Sub-section (1) of Section 222 provides for the issue of a certificate by the Income-tax Officer and it is as follows :
' 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-
(a) attachment and sale of the assessee's movable property ;
(b) attachment and sale of the assessee's immovable property ;
(c) arrest of the assessee and his detention in prison ;
(d) appointing a receiver for the management of the assessee's movable and immovable properties.'
5. Chapter XVII of the Act which contains the above provisions is headed as ' Collection and Recovery of Tax '. It is apparent from the above provisions that the assessee is liable to pay advance tax by three instalments and by virtue of Sub-section (1) of Section 218, if he does not pay any instalment of advance tax he shall be deemed to be an assessee in default 'in respect of such instalment or instalments. The object of this provision is quite obvious. It aims at recovering advance tax from the assessee. If it is held that advance tax is not recoverable before the completion of assessment, Sub-section (1) of Section 218 would be meaningless and nugatory. After the assessment, the assessee is to pay tax that has been assessed by the Income-tax Officer and the question of payment of advance tax cannot arise at that stage. It has been already noticed that section 219 provides for giving credit to the assessee in the regular assessment the amount of advance tax recovered from him in pursuance of Chapter XVII. Section 219, therefore, clearly indicates that advance tax can be recovered from the assessee even though the assessment for the financial year in question is yet to be made. The learned Commissioner, Presidency Division, has completely overlooked the provision of Section 219 which, in our opinion, resolves all doubts as to the jurisdiction of the Income-tax Officer to recover advance tax before the assessment is completed.
6. The learned Commissioner (Presidency Division) has, however, taken the view that Section 222 under which the certificate was issued by the Income-tax Officer, does not apply to the recovery of advance tax. He has sought to make a distinction between the expression ' an assessee is deemed to be in default ' in Sub-section (1) of Section 222 and the expression ' an assessee in default in respect of such instalment or instalments ' in Sub-section (1) of Section 218, In our view, there is no distinction between the two expressions. The learned Commissioner is of the view that advance tax is not tax, but he has not given any reason for the same. It has been already pointed out that Section 219 clearly indicates that advance tax is recoverable before the completion of assessment and any amount that may be recovered from the assessee under the provisions of Chapter XVII will be credited in the regular assessment. The only provision for recovery in the above Chapter is contained in Section 222. The question whether advance tax is tax or not has been considered by a Division Bench of the Gujarat High Court in Swastik Engineering Works v. Commissioner of income-tax  87 ITR 116. It has been held by P. N. Bhagwati C.J., who delivered the judgment of the Bench, that advance tax should be treated as tax for the purpose of applying the provision of Section 221 of the Act, and that if the assessee fails to make payment of advance tax on the specified date, he would be deemed to be in default. In coming to the said finding, Bhagwati C.J. has considered some of the provisions of Chapter XVII including Section 219. In our view also what an assessee has to pay in advance is nothing but tax and is adjusted towards the amount of tax finally assessed by the Income-tax Officer. Moreover, if the view of the learned Commissioner is accepted, there will be no sense for the legislature in placing the provisions for advance tax under Chapter XVII which relates to collection and recovery of tax. We, therefore, hold that the learned Commissioner has committed an error of law apparent on the face of the record in holding that advance tax is not tax, and that the same is not recoverable under Section 222 of the Act.
7. Before we part with the case we may notice one argument of the learned Commissioner (Presidency Division) in support of his view that advance tax cannot be recovered from the assessee before the assessment is completed and made final. It has been stated already that after the assessment is made there is no question of payment of advance tax. Be that as it may, the learned Commissioner has referred to a hypothetical case where the final assessment may be nil on account of non-earning by the assessee of any income during the financial year in question and has observed that it is unthinkable that the law of the land would authorise proceedings against such an assessee in a summary manner to the extent of attaching his bank account and movable property for tax not due. In making the said observation, the learned Commissioner has completely overlooked the provision of Sub-section (2) of Section 212 of the Act which, as noticed earlier, provides for the sending of a revised estimate of advance tax by the assessee before any one of the dates specified in Section 211. So, if the assessee does not earn any income, he will be entitled to send a revised estimate to the Income-tax Officer stating therein that he is not liable to pay advance tax in any instalment or instalments as he had no income or taxable income. If such a revised estimate is filed by the assessee, the Income-tax Officer will have no jurisdiction to recover advance tax from the assessee pursuant to the notice of demand issued under subsection (2) of Section 211 of the Act. Needless to say, Sub-section (2) of Section 212 has been enacted by the legislature to meet such eventualities relating to the income of the assessee.
8. For the reasons aforesaid, we set aside the order of the Commissioner, Presidency Division, and restore that of the Tax Recovery Officer, Calcutta and 24-Parganas, subject to this that if the tax for the assessment year in question has, in the meantime, been recovered from the assessee pursuant to final assessment or if the assessment has been completed but without any recovery of tax, in either event, the certificate proceeding in question will no longer be maintainable, but in the latter case a fresh proceeding may be started for the recovery of tax in accordance with law.
9. The rule is made absolute to the extent indicated above. There willbe no order as to costs.
D.C. Chakravorti, J.
10. I agree.