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 defe