TMI Blog1970 (2) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 41(3) of the Act to the Revenue Recovery Officer for recovery from the petitioner of the tax due from the said George Peter. George Peter was assessed on December 12, 1963, for the assessment year 1963-64. A notice under section 30 of the Act was admittedly issued to him. He did not pay the tax. He died on April 3, 1967. Thereafter, no notice under section 30 of the Act was issued to the petitioner. But exhibit P-1 revenue recovery notice dated January 29, 1968, was issued to the petitioner as well as the other heirs of George Peter stating that the properties mentioned in the notice will be proceeded against for recovery of the tax. A certificate dated June 26, 1964, had been issued to the second respondent stating that a sum of Rs. 776.79 was due from the said George Peter. After his death another certificate dated January 16, 1968, was issued to the second respondent stating that the identical amount was due from the petitioner, the widow of the said George Peter, and the other legal heirs, seven in number, mentioned in that certificate. In order to answer the questions raised by counsel, it is necessary to refer to the definition of the term " assessee " in the Act i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m less than the amount of the arrears and may enhance the sum so directed to be recovered from time to time in the case of a continuing default, so however that the total sum so directed to be recovered shall not exceed the amount of the arrears payable. (3) The Agricultural Income-tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from an assessee and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue : Provided that without prejudice to any other powers of the Collector in this behalf, he shall for the purpose of recovering the said amount have the powers which under the Travancore or Cochin Code of Civil Procedure a civil court has for the purpose of the recovery of an amount due under a decree. (4) No proceeding for the recovery of any sum payable under this Act shall be commenced after the expiration of three years from the latest day fixed for payment in the notice of demand served under section 30 or where the assessee has been treated as not being in default under the proviso to section 40 pending his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which uses the words " to pay the amount due by the assessee in respect of arrears " and there is no discussion in the judgment as to whether any amount could be said to be in arrears when the period stated in the notice of demand had not expired. The pronouncement seems to support counsel on behalf of the revenue that section 41(3) of the Act must be understood in the same manner as section 226(3) of the Income-tax Act, 1961, was understood by the Supreme Court. The proceedings contemplated by section 226(3) of the Income-tax Act, 1961, and by section 41(3) of the Act are entirely different, and I, therefore, do not wish to pronounce on the question as to whether a certificate can be issued in the absence of a demand notice under section 30 of the Act or if there is one before the expiry of the period mentioned in that notice for payment of the money since section 41(3) speaks of arrears. I leave this question open, for the case can be disposed of on another ground. That ground is based on the contentions raised by counsel on behalf of the revenue that the Collector by virtue of the proviso to section 41(3) has the powers of a civil court and that therefore the Collector can t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sense that she represents the estate, to whatever extent it be of the deceased, then, she is liable by virtue of sub-section (2) of section 52 of the Civil Procedure Code read with the proviso to sub-section (3) of section 41 of the Act. If the principle of the ruling in Sahu Rajeshwar Nath v. Income-tax Officer is made applicable, the Collector is enabled to proceed against the petitioner. But there has been no notice under the Code of Civil Pcocedure as visualised by rule 22 of Order 21 which is an imperative provision before proceeding against the legal representative. It is clear that there should be compliance with this provision. The notice, exhibit P-1, does not even purport to be one under the Civil Procedure Code. In fact it specifically is one under the Revenue Recovery Act and which is the certificate the Collector relied on before issuing exhibit P-1 ; whether the one dated April 26, 1964, or the later certificate dated January 16, 1968, is not clear. But if an inference is possible, I am inclined to draw the inference that he must have relied on the latter certificate. Notwithstanding the above defects, one of which at least is vital, counsel for the revenue has su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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