DAS GUPTA, J. - (1.) THIS is an application by one Mr. Elbridge Watson for a writ of mandamus or a writ of like nature or an order directing the respondent Sri R. K. Das, an ITO, to show cause why the orders complained of and dt. 18th March, 1949, should not be set aside and for quashing the said orders. The case of the petitioner before me is as follows : The petitioner, an American citizen by birth, is a citizen of India and thereafter of the Union of India for about 16 years. The petitioner is the manager and director of M/s Chrestian Mica Industries Ltd. The total income which the petitioner gets from the said company is the net sum of Rs. 60,000 to Rs. 70,000 annually after deducting the income-tax payable by him. On 22nd Oct., 1948, the petitioner was assessed to incometax for asst. yr. 1946- 47. The tax assessed was Rs. 5,30,526, and after crediting the sums of Rs. 50,252-11-0 and Rs. 12,616-4-0 realised by the respondent, a sum of Rs. 4,67,657-1-0 became due and payable by the petitioner to the IT authorities. On 18th Nov., 1948, the respondent caused a notice of attachment under s. 46(5A) of the IT Act, 1922, to be issued and served upon the Chrestian Mica Industries Ltd., the employers of the petitioner. By the said notice of attachment, the said M/s Chrestian Mica Industries Ltd., were required to pay to the respondent forthwith any money due from them to the petitioner or held by them for or on account of the petitioner and also to pay any money which may become due to him or any money which the said M/s Chrestian Mica Industries Ltd., may subsequently hold for or on account of the petitioner within the next three months. On 21st Dec., 1948, the respondent forwarded to the office of the Certificate Officer, 24 Parganas, Alipore, a certificate for Rs. 4,67,657-1-0 under s. 46 (2) of the IT Act for recovery of the said sum by the Certificate Officer under the Bengal Public Demands Recovery Act, 1913. The said certificate was filed with the Certificate Officer, 24 Parganas, Alipore, and the case was numbered and registered as No. 201 I.T. of 1948-49. After having forwarded to the office of the Certificate Officer, 24 Parganas, the certificate as aforesaid, the ITO on 18th March, 1949, caused another letter of attachment to be served upon the employers of the petitioner, namely, M/s Chrestian Mica Industries Ltd., and caused an attachment to be effected under s. 46(5A) of the IT Act. By the said notice M/s Chrestian Mica Industries Ltd., were required under s. 46(5A) of the IT Act, 1922, to pay to the respondent forthwith any amount due from them to the petitioner or held by them for or on account of the said petitioner up to the amount of arrears shown in the said letter which was Rs. 3,37,345-5-0 and also requiring the said M/s Chrestian Mica Industries Ltd., to pay any money which may subsequently become due from them to the petitioner or which they may subsequently hold for or on account of him up to the amount of arrears still remaining unpaid. Thereafter on 28th Dec., 1949, the petitioner made an application to the Certificate Officer for payment of his dues in monthly instalments. The said application was not disposed of but kept pending at the instance of the respondent. On 25th May, 1950, another application was made to the Certificate Officer and on that application an order was made allowing the petitioner to pay his dues in monthly instalments of Rs. 5,000 each, the first of such instalments being payable on 15th June, 1950, and subsequent instalments by the 15th of subsequent months. The material portions of the order passed by the Certificate Officer run as follows : ". . . . . I do not understand why a petition for instalments as submitted by the C. D. should have been kept hanging fire like this at the instance of the ITO. I permit the C.D. to pay for the present at the rate of Rs. 5,000 per month, each payment being made by the 15th of each month. The rate of instalment is, however, liable to be reconsidered and refixed in the light of future developments. The first payment is to be made by 15th June, 1950. Also write to the ITO for information regarding other payments that may have since been made by him."
(2.) THEREAFTER on 30th May, 1950, the petitioner through his advocate made an application to the respondent asking him to withdraw the notices under s. 46(5A) of the IT Act. In the said application it was inter alia stated as follows : "I have the honour to state that by an order of the Certificate Officer in Certificate Case No. 201 I. T./1948-49, the learned Certificate Officer has been pleased to grant me instalments of Rs. 5,000 per month. I would therefore request you to withdraw all notices under s. 46(5A), which you have issued for the realisation of the aforesaid dues so that my client abovenamed may be able to make the payments according to the instalments granted and that he may have something to live upon." Nothing was done regarding the said application and the said application has been kept pending since May, 1950, and no order on the same to the knowledge of the petitioner has been passed by the respondent ; but the respondent in his affidavit in opposition has stated that the same was rejected on 5th June, 1950. Under the circumstances the petitioner has made the present application for the reliefs mentioned. Dr. Pal appearing on behalf of the petitioner contended before me that in view of the order passed by the Certificate Officer on 25th May, 1950, granting instalments the respondent should either withdraw the attachment which had been made on 18th March, 1949, or at least modify the same. He relies on s. 46(5A), and contends before me that in any event the attachment which has been effected by the notice of 18th March, 1949, should be revised to this extent, namely, that the employers of the petitioner should be asked to pay Rs. 5,000 per month being the amount of instalments which has been ordered to be paid by the Certificate Officer and it is incumbent on the ITO to do so.
(3.) IT is necessary for me, in order to determine this matter, to consider the effect of s. 46 and particularly s. 46(5A) of the IT Act. The material provisions of s. 46 necessary for me to consider are as follows : "46.(2) The ITO 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 : Provided that without prejudice to any other powers of the Collector in this behalf, he shall for the purpose of recovering the said amount have the powers which under the CPC, 1908, a Civil Court has for the purpose of the recovery of an amount due under a decree." "46. (5A) The ITO may at any time, or from time to time, by notice in writing (a copy of which shall be forwarded to the assessee at his last address known to the ITO) 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 ITO, 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 becomes due or is held) so much of the money as is sufficient to pay the amount due by the taxpayer in respect of arrears of income-tax and penalty or the whole of the money when it is equal to or less than that amount. The ITO may at any time or from time to time amend or revoke any such notice or extend the time for making any payment in pursuance of the notice." The point which specifically arises for my consideration is what would be the "amount due" as mentioned in s. 46(5A) of the IT Act ? Is it, in the present case the whole of the amount which is payable to the IT authorities by the petitioner, viz., Rs. 3,37,345-5-0 or is it Rs. 5,000 per month as and when the instalments become due ?;