c COLLECTOR OF cusroMS & ORS. v. Mis. SOORAJMULL NAGARMULL & ANR. March 28, 1969 [M. HIDAYATULLAH, C.J. AND G. K. MITTER, J.] Civil Procedur. Code, 1908—0rder 21 Rule 2, Income Tax Act, 1922, section 46 (5A)-Decree against the Union of India for refund of exceu customs duty collected-Notice is.ued to Collector by the Income Tax Of!icer undtr section 46(5A) of Income Tax Act, 1922-Payment by Collector against tax-Whether amounted to payment by judgment debtor which could be adjusted under Order 21 Rule 2.
The re.pondent filed suits against the Collector of Customs and the Union elf India claiming refund of excess customs duty levied on spindle oil imported into India. The trial court granted decrees against the Union of India for the amounts charged in exc"'8. As the respondent had large outstandings of tax, the Income Tax Officer issued a notice under section 46(5A) of the Income Tax Act,
1922 calling upon the Collector of Customs to pay the amount of the decree to him. The Collector paid the amount into the Reserve Bank, who issued receipts crediting the amount against super-tax due from the respondent. He then applied to the High Court under O. 21 r. 2 C.P.C. for the adjustment elf the decree by ttiis amount. This was refused by a single Judge as well as in appeal by a division bench. It was held that the decree. were against the Union of India and not the Collector of Customs and that payment by the Collector was not a payment by the judgment debtor. Furthermore the amounls wert held by the Collector on behalf of the Union of India and not · on behalf of the Firm. The Hieb Court also found the notice to be defective inasmuch as it asked for payment towards income tax and penalty. while the receipts which were granted to the Firm stated that the amount paid was against super-tax due.
On appeal to this Court, HELD : The Union of India operate. through different Departments and a notice to the Collector of Customs in the circumstances was a proper notice to issue because it was the Collector Of Customs who h1d in the firat instance recovered the amount and held it from the respondent. 1be Collector paid the amount on behalf elf the Union of India. [126 A] A notice under section 46(SA) is no more than a kind of garnishee order. issued to the person holding money and the money is due to an ass"'8ee. The amount whkh was held by the Collector of Customs could pro~erly be asked to be deposited with the income tax authorities under section 46(SA). [127 B-D]
Super tax i• also a kind of income tax and therefore, the notice could is•ue in the form it did. There was no force in the contention that the amount, which could be adjusted under 0. 21, r. 2, is a voluntary payment by the judgment debtor to the decree holder and the present case was not one of voluntary pay- ment at all. Order No. 21, r. 2 merely contemplate. payment out elf. court and says nothing about voluntary payment. A garnishee order can never by its nature lead to a voluntary payment and it is not to be thought that a garnishee order does not lead to the adjustment of the decree (1970] I S.C.R.
sullicient for being certified by the Court. Payment by virtue of s. 46(5Al is in the nature of a garnishee payment and mlljt, therefore, be sub1ect to the same rule. (127 G-I 28 Bl
In,. Btckit~ [19331 l.T.R. I, Bidhoo Beebtt v. Kcshub Chundtr Baboo & Ors. 9 W.R. 462, Mahiganj Loan Office Ltd. v. Bthari Lal Chakl, !.L.R. 119371 I Cal. 781, A. P. BQ/lchi v. Mrs. F. Morgun A.J.R. 1935, All 513, Thomc.s Skinne' v. Ram
Rachpal I.LR. [1938) All 294, distinguished. CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 429 and 430 of 1966 Appeals by special leave f·om the judgments and orders dated Ja,nuary 22, 1964 of the Calcutta High Court in Appeals Nos. 199 and 200 of 1962 from Original Order.
B. Sen and S. P. Nayar, for the appellants (in both the appeals). A. N. Sinha and D. N. Gupta, for respondent No. I (in both the appeals). The Judgment of the Court was delivered by
Hidayatullah, C.J. This is an appeal against the judgment and decree of the High Court of Calcutta refusing to enter satisfaction of two decrees under 0. 21 r. 2 of the Code of Civil Procedure obtained by the respondents against the Union of India in the following circumstances.
The respondents M/s Soorajmull Nagarmull imported spindle oil from Philadelphia. The firm was required to pay Customs Duty under Item 27(3) of the First Schedule to the Tariff Act, 1934 at 27% ad va/orem.
The firm filed two suits asking for refund of excess duty claiming that the oil was dutiable only under Item 27(8) at -12/6 per imperial gallon. The suits were filed against the Collector of Customs, the Assistant Collector of Customs for Appraisement and the Union of India.
The suits were successful and decrees were passed against the Union of India for refund of the amount charged in excess. In one suit the decree was for payment of Rs. 43,723/- with interest at 6% per annum from 1st day of April, 1952 until realisation. In the second suit the decree was for Rs. 75,925/- with similar interest.
Since the firm h?.J not paid a sum of Rs. 18,08,667.72 as tax the Income-Tax Officer, Circle II. Calcutta issued a notice under s. 46(5a) of the Indian Income-Tax Act, 1922 calling upon the Collector of Customs to pay the amount of the decree to him and stating that his receipt would constitute a good and sufficient discharge of the liability for refund to the firm.
The Collector of Custmm paid the amount into the Reserve Bank and the Re- serve D1nk ;,sued receipts crediting the amount against Super- c c CUSTOMS COLLECTOR v. SOORAJMULL (Hidayatullah, C.!.) 125
tax due from the firm. The Collector of Customs then applied to the High Court of Calcutta under 0. 21 r. 2 of the Code of Civil Procedure for the adjustment of the decrees by this payment. This was refused by a learned single Judge who gave no reasons while dismissing the petition. On appeal to the Division Bench it was held by the Division Bench on January 22, 1964 that the adjustment of the decrees could not be granted. It is against the last order that the present appeals have been filed by special leave of this Court.
The High Court in reaching the conclusion observed that the decrees were against the Union of India and not the Collector of Customs. Further the sums were held by the Collector of Cus- toms on behalf of the Union of India and not on behalf of the firm. The High Court found the notice to be defective inasmuch as it asked for payment towards Income-tax and towards penalty, while in the receipts which were granted to the firm, stated that the amount was for Super-tax. On these three grounds, the High Court held that the learned single Judge was right in dismissing the application of the Collector of Ci.otoms for the adjustment of the decrees.
Order 21, r. 2 of the Code of Civil Procedure takes note of payments out of court to decree-holders and provides that where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accor- dingly.
It is also provided that the judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause why such payment or adjustment should not be recorded as certi- fied.
The contention of the respondents in these appeals is that the decrees were not passed against the Collector of Customs but against the Union of India and that payment by the Collector of Customs was not a payment by the judgment-debtor. In our judgment this plea is highly technical. The amount was recov- ed by the Collector of Customs from the firm and was bei"g held by the Union of India through the Collector of Customs.
The Collector of Customs paid the money not on behalf of himself but on behalf of the Union of India and it must be treated as a proper payment of the amount to the firm. The objectic,,1 of the rc,pondent that it amounts to a payment by one Department of the Government to another does not, in our opinion, hold much substance.
It is also extremely technical. The Union of India SUPRBMB COURT IUlPOllTS [1970] 1 S.CJl. operates through different Departments and a notice to th~ Col- lector of Customs in the circumstances was a proper nott~ to issue because it was the Collector of Customs who had in the first instance recovered this money and held it from the firm.
It is next contended that the notice is defective inasmuch H it shows that the money was lying with the Collector ?f Customs whereas it was, in fact, lying with the Union of India and that it was not money held by the Collector of Customs on behalf of the finn.
Section 46(5A) of. the Income-tax Act reads as fol- lows: "46. Mode and time of recovery. (SA) The Income-tax Officer may at any time or from time to time, by notice in writing (a copy of which
shall be forwarded to the asessee at his last address known to the Income-tax Officer) require any person from whom money is due or may become due to the assessee or any person who holds or may subsequently
hold money for or on account of the assessee to pay to the Income-tax Officer, either forthwith upon the money becoming due or being held or at or within the time specified in the notice (not being before the money be-
comes due or is held) so much of the money as is suffi- cient to pay the amount due by the tax payer in respect of arrears of income-tax and penalty or the whole of the money when it is equall to or less than that amount.
Any person m~g any .Payment in compliance with a notice under this sub-section shall be deemt.d to have made the payment under the authority of the assessce and the receipt of the Income-tax Officer shall constitute a good and sufficient discharge of the liability of such
person to the assessee to the extent of the amount refer- red to in the receipt. Any person dischar~g any liability to the assessec after receipt of the notice referred to in thia sub-section shall be personally liable to the Income-tax Olllcer to
the extent of the liability discharged or to thit extent of the liability of the assessee for tax and penalties whichever is less. c CUSTOMS COLLECTOR v. SOOl!.AJMULL (Hidayatul/ah, C.J;) 127 If the person to whom a notice under this sub-section
is sent fails to make payment in pursuance thereof to the Income-tax Officer, further proceedings may be taken by and before the Collector on the footing that the In· come-tax Officer's notice has the same effect as an at-
tachment by the Collector in exercise of his powers under the proviso to sub-section (2) of section 46. c Such notices of the Income-tax Officer are no more than a kind of a garnishee order issued to the person holding money which money is due to an assessee.
The Collector of Customs had recovered this money and up.der the decrees of the Court the Union of India was liable to refund it to the firm. A garnishee order is issued to a debtor not to p_ay to his own creditor but to some third party who has obtained a final judgment against the creditor. • By a parity of reasoning this amount, which was with the Collector of Customs, could be asked to be d~sited with the Income-tax Authorities under s. 46(5A).
The argument is extremely techni9al for that the firm is entitled to get a double benefit of the decree, first by having the decretal amount paid to the benefit of the firm and then to recover it again from the Union of India.
It is contended lastly that the notice of the Income-tax Officer spoke of Income-tax and/ or penalty whereas the amount was taken towards payment of Super-tax due from the firm. · It is, however, conceded in the face of authorities cited at the Bar that the Super-tax is also a kind of Income-tax and, therefore, the notice could issue in the form it did. The leading case on the subject is ln re Beckitt(1) and learned counsel for the respondents did not controvert the proposition laid down there. It is, how- ever argued on the authority of Bidhoo Beebee v. Keshub Chunder Baboo and Ors.,(2 ) Mahiganj Loan Ofjile, Ltd. v. Behari Lal Chaki,( 8 ) A. P. Bagchi v. Mrs. F. Morgan(') and Thomas Skin· ner v.-Ram Rachpal(1); that the payment which clllll'. be adjusted under 0. 21, r. 2 is a voluntary payment by the judgment-debtor to the decree holder and that this is n6f a case of voluntary pay- ment, at all. The rulings which have been cited do not, in our opinion, apply here. This point was not considered in the High Court and sc:ems to have Geen thought of here. Order 21, r. 2 merely contemplates payment out of court and says nothing ab!>ut voluntary payment. A garnishee order can never by its nature (I) (1933] I. T. R. I.
(2) 9 W. R. 462. (3) I. L. R. (1937 I] Cal. 781. (4) A. I. R. 193' All. 513. (S) I. L. R. 1938 All. 294. SUPRBMB COURT REPORTS [1970) 1 S.C.R. lead to a voluntary payment and it is not to be thought that a garnishee order does not lead to the adjustment of the di:cree suffi- cient for being certified by the Court.
Payment by virtue of s. 46(5A), as we have stated before, is in lhe nature of a garnishee payment and must, therefore, be subject to the same rule. The rulings themselves do not <:ontrol the present matter. In 9 W.R. 462 the payment was not under a garnishee order but under the process of the court issued in execulion by arrest of the judgment-deblor. Contrasting what had happened in the case with the words of the second rule of 0. 21 (then s. 206 of tbe Code of 1859) the learned Judges observed that s. 206 covers cases of voluntary payment. The debtor was protected by treat- ing the payment as being made through the court. The exact point we are dealing with was not before the Court. In I.L.R. [! 9371 1 Cal. 781 there was a scheme framed by the depositors of a banking Company for return of their deposits in spite of opposition from decree-holders depositor of the Complllly. The scheme was sanctioned by the Court.
The scheme was binding on the decree-holder but it was not treated as an adjustment with- in 0. 21, r. 2 of the Code of Civil Procedure. The reason given was that the adjustment must be to the satisfaction of the decree- holder and must be with the consent of both the decre~-holder and the judgment-debtor and not one which is made binding by operation of law. It is to be noticed that that was a payment to which the judgment-debtor had objected although it was binding on him.
We see no rea~on for making a distinction between a voluntary payment out of court and a payment out of court which the law regards as valid. No reasons are given in the judgment why such a distinction should be made. In I.LR. (1938] \;1. 294, the pa)'I'lent was made in court and not outside court. This is the nearest case to the present one and but for this differe:ice, it is reasonable to think that the learned Judges would have taken the same view of the matter as we have taken.
The reason given by the learned judges brings out the real object of the rule: "where a judgment-<lebtor makes payment outside the Court, the Court knows nothing about the payment
and therefore r. 2, 0. 21 ordains that the parties should inform the Court about the payment." This object in our opinion is fully achieved when there is payment under a garnishee order outside the Court. In the case cited the Court knew of the payment· and could give protection in other ways.
In A.I.R. 1935 All. 513 the payment was again without tbe consent of the Judgment-debtor either in fact or in law. Too much. emphasis al?pears to have been placed upon mutual under- standing and too !title on payment out of court which is the ess~nc" ll
c c c CUSTOMS COLLECTOR v. SOORAJMULL (Hidayatul/ah, C.l.) 12!1 of the rule. The case turned on whether there was any under- standing and too little on payment out of court which is the essence debtor on repairs would be set off against the decretal amount and therefore 0. 21, r. 2 of the Code of Civil Procedure was held inapplicable.
In none of the cases the point of a garnishee order was consi- dered. In our opinion, a case of a garnishee payment or one made Wider s. 46(5A) of the Income-tax Act of 1922 stands on a different footing and if the payment has been legally made out of Court in full and final discharge of the liability under a decree, there is no reason why the judgment debtor cannot move the Court for getting the adjustment or payment certified,
The payment was required to be certified under O. 21, r. 2 of the Code of Civil Procedure and we order that it be so certified. The appeals are accordingly allowed with costs here and in the High Court.
R.K.P.S. Appeals allowed.