TMI Blog1941 (3) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Income Tax the assessment was cancelled by his order dated February 18, 1935, and he directed the Income Tax Officer to make a fresh assessment. Eventually on March 31, 1935, the Income Tax Officer assessed the Income Tax at ₹ 5,733 only. The plaintiff was accordingly entitled to a refund of ₹ 31,191-5-0. He had also deposited ₹ 100 when he moved the Commissioner of Income Tax for referring the matter to the High Court. In the meantime on March 26, 1935, the plaintiff was assessed with Income Tax of ₹ 13,715-5-0 for the year 1934-35. The Income Tax Officer deducted this amount from the sum of ₹ 31,191-5-0 which was refundable to the plaintiff for the year 1932-33 so that the balance actually refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The plaintiff sent a registered notice on February 7, 1936, under Section 80 of the Civil Procedure Code to the Secretary of State for India in Council claiming refund of ₹ 7,364-13-0 on account of Income Tax and of ₹ 100 which had been deposited by him together with interest. The notice was served on the Collector of Shahabad on February 8, 1936. Thereafter the Income Tax Officer issued a refund voucher for ₹ 3,939-13-0 which the plaintiff accepted under protest on February 10, 1936. The plaintiff filed the present suit on May 21, 1936, claiming refund of the balance of ₹ 3,425 on account of Income Tax and of ₹ 100 which had been deposited by him with the Commissioner together with interest, the total c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sum of ₹ 3,435 which remained outstanding on account of Income Tax payable by the plaintiff for the year 1930-31 and that the Civil Court has no jurisdiction to try the suit. Hence this appeal by the plaintiff. The first contention raised by Mr. P. R. Das for the appellant is that the Income Tax Officer had no right to deduct the sum of ₹ 3,425, which remained unrealised from the plaintiff on account of Income Tax for the year 1930-31. The deduction was made by the Income Tax Officer under Section 49-A of the Indian Income Tax Act, 1922, as it stood in 1935. The section ran as follows :- Where under any of the provisions of this Act, a refund is found to be due to any person, the Income Tax Officer, Assistant Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land revenue . Mr. Dass contention is that the only method by which Income Tax may be recovered is that laid down in Section 46. If therefore, the tax is not realised within the time limit prescribed by sub-section 7 of the section, the tax is no longer payable by the assessee. This argument, to my mind, is wholly untenable. In the first place, Section 46 of the Act prescribes only a summary remedy and there is nothing in that section or in the other provisions of the Act to indicate that that is the only remedy by which Income Tax is recoverable. The time limit prescribed in Section 46(7) of the Act obviously applies to proceedings under that section. When Income Tax is assessed, it becomes a debt due by the assessee to the Crown. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e expression remaining payable by the person in Section 49-A of the Act would have to be read as meaning legally recoverable from the person. If the Legislature had really intended that under Section 49-A the right of set-off was to be limited to an amount of tax legally recoverable, they could have expressly said so. I have no doubt in my mind that though no proceedings under Section 46 of the Indian Income Tax Act could be taken in 1935 for recovery of the unrealised arrears of tax for the year 1930-31 those arrears still remained payable within the meaning of Section 49-A of the Act. In my opinion, therefore, the learned Subordinate Judge was right in holding that the Income Tax Officer was entitled under Section 49-A of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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