Judgement

Appeal (No. 43 of 1943) from a judgment and decree of the High Court (January 16, 1941) which had reversed a decree of the Court of the Subordinate Judge, Howrah (July 31, 1936).

The following facts are taken from the judgment of the Judicial Committee On February 27, 1933, the appellant was assessed to income-tax and super-tax by the Income-tax Officer, Howrah, under the provisions of the Indian Income-tax Act, 1922, for the years 1928-29, 1929-30 and 1930-31, the assessments being made under the provisions of s. 23, sub-s. 4. Notices of demand were issued and tax for the year 1928-29 was paid by the appellant, but the tax for the remaining two years remained due. Penalties were imposed by the Income-tax Officer under s. 46, sub-s. 1, Indian Income-tax Act, and certain recoveries were made. It was not necessary to consider those matters in detail since it was not the appellants case that nothing was due from him at the date of the disputed certificate, and the exact amount due was not in issue in this appeal. On March 29, 1933, the Income-tax Officer, purporting to act under the power conferred by s.46, sub-s.2, of the Indian Income-tax Act, addressed to the Collector a certificate certifying that the sum of Rs.3,86,529.1.0 due from the appellant on account of income-tax, super-tax and penalty was in arrear, and requesting the Collector to recover the amount as if it were an arrear of land revenue. The effect of that certificate was to make the claim against the appellant a public demand within the meaning of the Bengal Public Demands Recovery Act, 1913, by virtue of s. 3, sub-s.6, of the Act and cl. 3 of sched. I.

On April 1, 1933, the Certificate Officer of Howrah signed a certificate, stated to be under ss. 4 and 6 of the Bengal Public Demands Recovery Act. The certificate stated on its face that it was filed in the office of the Certificate Officer of Howrah, and followed the form given in the appendix to the Act. In the second column the name of the Certificate holder was stated to be u Income-tax officer, Howrah" and, in column 4, the amount of the demand was stated to be Rs.3,86,529.1.0, and in column 5 the particulars given were " Income-tax and penalty." On the same day the Certificate Officer ordered the issue of notice under s. 7 of the Act, and on May 1, the appellant filed objections to the certificate proceed ings tinder s. 9 of the Act. On August 1 the Certificate Officer passed an order holding the certificate to be invalid, but that order was set aside by the Collector on September 7, 1933, and the case was remanded to the Certificate Officer. The order of the Collector was finally upheld by the Commissioner on December 18, 1933. On September 7, 1933, the Certificate Officer passed the following orders—-Amend the Certificate and put down Secretary of State for Income-tax Officer, Howrah, in column 2 of the certificate. Reduce the amount of the certificate by Rs.3,875 as in the petition of June 27, 1933. Issue notice under s. 7 of the Public Demands Recovery Act on the debtor at once.

Those orders were duly carried out, but the officer making the amendments seemed to have understood the direction to put down Secretary of State for Income-tax Officer as meaning that the name of the Secretary of State was to be entered on behalf, and not in the place, of that of the Income-‘ax Officer. Accordingly, in column 2 the name of the Certificate holder was entered as " Secretary of State on behalf of Income-tax " Officer, Howrah," and in column 4 the amount of the debt was reduced by Rs.3,875.

On February 17, 1934, the suit out of which this appeal arose was filed, and the relief claimed was (1.) a declaration that the certificate lodged by the defendant before the Certificate Officer, Howrah, on April 1, 1933, was illegal, void and inoperative; (2.) an injunction restraining the defendant from enforcing, or attempting to enforce, the said illegal certificate; (3.) an account of all moneys realized by the defendant under the said illegal certificate, and refund thereof to the plaintiff; (4.) release from civil prison. The relief claimed, therefore, was limited to a declaration that the certificate of April 1, 1933, was illegal, void and inoperative and for consequential relief, but there was no claim for modification of the amount alleged to be due on the certificate if valid.

At the trial the Subordinate Judge at Howrah decreed the plaintiffs suit, holding that the certificate of April 1, 1933, was void since no order was shown to have been made for its filing, and the name of the certificate holder was wrongly given, since the name of the Secretary of State should have appeared without qualification.

On appeal the High Court of Calcutta (Nasim Ali and Akram JJ.) reversed that decision and dismissed the suit.

The relevant provisions of the Bengal Public Demands Recovery Act, 1913, appear from the judgment of the Judicial Committee.

1944. Dec. 6, 11. Sir Thomas Strangman K.C. and W. W. K. Page for the appellant. The main question is whether, as held by the High Court, the certificate was duly made and filed under the provisions of the Bengal Public Demands Recovery Act, 1913, and accordingly valid, or whether, as held by the trial judge, it was not so made or filed and was therefore void and unenforceable. The certificate was not duly made or duly filed as required by the Act, and was void, and all proceedings in execution thereof illegal. No requisition as required by s. 5 of the Act of 1913 was made. The Income-tax Act, 1922, s.46, sub-s.2, and the Public Demands Recovery Act, 1913, must be read together, and in doing so, a requisition is required under s. 5 of the latter Act. Whether, however, a requisition was or was not required, the certificate signed, whether in its original or amended form, gave the wrong title in that it did not contain the proper name of the certificate holder, the Secretary of State, and further, it did not specify the period for which the demand was due. The certificate was not, as held by the High Court, made under s. 4 of the Act of 1913, but under s. 6 of the Act. Lastly, under

s. 6 the certificate should have been filed in the office of the Certificate Officer, and there was no evidence of any order that that should be done.

W. W. K. Page followed. There being no evidence that the certificate, whether made under s. 4 or s. 6 of the Act, was in fact filed as required by the Act, no presumption could properly be made that it had been duly filed. Alternatively, if the entry in the register of certificates and/or the statement to that effect in the certificate constituted evidence that it had been filed, no presumption that it had been duly filed could, by reason of such evidence, be made, in view of the irregular conduct of the certificate proceedings. [Reference was made to Ashanullah Khan Bahadur v. Trilochan Bagchi (( 1886) I. L. R. 13 C. 197), Walvekar v. Emperor (( 1926) I. L. R. 53 C. 718.), and Mahomed Abdool Hai v. Gujraj Sahai (( 1893) L. R. 20 I. A. 70, 75.)]. Where the powers given to the officer are not only over the appellants property, but also over his person, he is entitled to have it proved that they were properly exercised.

Tucker K.C. and Wallach for the respondent were not called on.

1945. Jan. 18. The judgment of their Lordships was delivered by SIR JOHN BEAUMONT. The only question which arises in the appeal is whether a certificate dated April 1, 1933, issued under the provisions of the Bengal Public Demands Recovery Act, 1913, is a valid certificate. The appellant in his case claims further that the certificate, if originally valid, became unenforceable by reason of matters which occurred after the filing of the suit, but their Lordships are of opinion that the relief claimed in this suit must be confined to matters existing at the date when the suit was instituted. [His Lordship then stated the facts set out above, and continued] The relevant provisions of the Bengal Public Demands Recovery Act, 1913, and the rules made thereunder are as follows—Section 4 provides that when the Certificate Officer is satisfied that any public demand payable to the Collector is due he may sign a certificate in the prescribed form stating that the demand is due, and cause the certificate to be filed in his office. Section 5 provides that when any public demand payable to any person other than the Collector is due, such person may send to the Certificate Officer a written requisition in the prescribed form. Section 6 provides for the recovery of a demand in respect of which a requisition has been made under s. 5. Section 7 provides that when a certificate has been filed in the office of a Certificate Officer under s. 4 or s. 6, he shall cause to be served on the certificate-debtor, in the prescribed manner, a notice in the prescribed form and a copy of the certificate. Section 9 enables the certificate-debtor within the time limited to present a petition to the Certificate Officer denying liability, in whole, or in part, and s. 10 provides for the hearing of such petition. Section 34 empowers the certificate-debtor at any time within six months from the service on him of the notice required by s. 7, or, if he files a petition under s. 9 denying liability, from the date of the determination of the petition, to bring a suit in the civil court to have the certificate cancelled or modified. Section 35 states the grounds on which a certificate may be cancelled or modified by the civil court. By s. 38 the rules of sched. II. are given statutory effect. Rule 79 provides that every Certificate Officer shall cause to be kept in his office a register of certificates filed in his office under the Act, and shall cause particulars of all such certificates to be entered in such register, and r. 84 provides that the forms set forth in the appendix shall be used with such variations as circumstances may require.

Their Lordships are in substantial agreement with the reasons of the High Court for dismissing the appellants suit. The validity of the certificate has been challenged before the Board on four grounds—First, it is said that the Certificate Officer did not cause the certificate to be filed in his office, since he offered no evidence of any order having been made directing the certificate to be filed. In their Lordships opinion there is no substance in this objection. When a statute directs a document to be filed in an office, the direction involves no formal or technical procedure. All that is required is that the document should be preserved in the office in such conditions that it can be produced when required. In the present case the certificate in question is stated on the face of it to have been filed; particulars of it were registered under r. 79; and it has been produced by the office, and the original was before their Lordships. In those circumstances, their Lordships hold it sufficiently proved that the Certificate Officer caused the certificate to be filed in his office, and it is not necessary to have recourse to the presumption, arising under s. 114, illustration "E," of the Indian Evidence Act.

The second objection is that there was no requisition under s. 5. Their Lordships agree with the view taken by the High Court that the money was payable to the Collector and, accordingly, the certificate was issued under s. 4 and not under s. 6, and no requisition under s. 5 was required.

The third objection relates to the name of the certificate holder as appearing in the certificate. It is admitted by the appellant that if the moneys were payable to the Collector the name of the certificate holder should be the Secretary of State for India, but it is objected that the name should be without qualification, and that in the certificate in question the name is qualified by the words " On behalf of Income-tax Officer, " Howrah." In their Lordships opinion, the addition of the words " on behalf of Income-tax Officer, Howrah " does not in any way alter or qualify the name of the certificate holder, which is given as the Secretary of State. The words do no more than indicate the nature of the demand for which the certificate is held, information more appropriate to be stated in column 5 than in column 2, but the inclusion of the words, in their Lordships opinion, has no effect whatever on the validity of the certificate.

The last objection to the certificate is that in column 4 no period for which the demand is due was stated as required by the heading to that column. In their Lordships opinion, although income tax may be popularly described as due for a certain year, it is not in law so due. It is calculated and assessed by reference to the income of the assessee for a given year, but it is due when demand is made under s. 29 and s. 45. It then becomes a debt due to the Crown, but not for any particular period.

In the result, their Lordships agree with the conclusion arrived at by the High Court of Calcutta and they will humbly advise His Majesty that this appeal be dismissed, with costs.