Hidayatullah, J. - (1.) One T.M. Khadir Mohideen, who owned rice mills and other wholesale business, died on August 11, 1948, after the end of the previous year for the assessment year, 1948-49. A notice under section 22(2) of the Income Tax Act was served on his two sons, and the assessment was made on a total assessable income of Rs. 63,982. The tax due was found to be Rs. 23,648-9-0 which, after deducting the tax paid under sections 18A and 23B, came to Rs. 19,903-3-0. Notices demanding the tax served on T.M. Abdul Kassim, the respondent, and on this brother, Syed Mohammad. The tax was not paid on the due date, and a penalty of Rs. 1,000 was imposed. The Income-tax Officer then issued a certificate under section 46(2) of the Act to the Collector of Ramanathapuram, who forwarded it to the Special Deputy Tahsildar for Income-tax Collection to take action under the Madras Revenue Recovery Act. A notice was then issued by the Deputy Tahsildar on July 17, 1956 requesting payment of Rs. 20,930-3-0 within one week. On August 7, 1956, T. M, K. Abdul Kassim (respondent) filed a petition under article 226 of the Constitution for a writ of prohibition against the Deputy Tahsildar, joining the First Additional Income-tax Officer, Karaikudi, as the. Other respondent.
(2.) The divisional bench who heard the petition, following their decision earlier given in Alfred. v. Additional Income-tax Officer, held that the petitioner could not be treated as an assessee, and that, therefore, sub-section (2) of section 46 was not applicable to him. The divisional bench, therefore, quashed the certificate by a writ of certiorari, and set aside the notice dated July 17, 1956, by the Tahsildar. The case was certified under article 133(1)(c) as fit for appeal, and the First Additional Income-tax Officer, Karaikudi, and the Special Deputy Tahsildar have filed the present appeal. The respondent was absent at the hearing.
(3.) The High Court, in the judgment under appeal, observes that the validity of the assessment or of the order imposing the penalty was not challenged at the hearing in the High Court. The respondent only questioned the certificate issued under section 46(2) of the Act and the recourse to the provisions of the Revenue Recovery Act. Section 46(2) of the Income Tax Act reads : "The 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." ;