TMI Blog1978 (1) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by tile 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 issued 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 aginst 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 141 A, the credit shall be given also in such provisional assessment." Sub-section (1) of section 222 provides for the issue of a cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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