Sinha, J. - (1.) This application concerns the assessment of excess profits tax (hereinafter referred to as the E. P. Tax) under the Excess Profits Tax Act, 1940 (Act 15 of 1840) (hereinafter referred to as the E. P. T. Act), of the firm of Sriram Jhabarmull for the chargeable accounting period, 26-3-1942 to 13-4-1943. The firm has been assessed on the footing of a Hindu undivided family, of which the Karta is Nandram Agarwalla.
(2.) The original E. P. T. Act did not contain any provision for provisional assessment. This was introduced by Ordinance No. 16 of 1943 which introduced Section 14A. As this provision is not generally found in the current text books, I set it out below : "14A. 'Power to make provisional assessments'. (1) The Excess Profits Tax Officer before proceeding to make an assessment (in this Section referred to as the provisional assessment) under Section 14, may at any time after the expiry of the period specified in the notice issued under Sub-section (1) of Section 13 as that within which the return therein referred to is to be furnished, and whether the return has or has not been furnished, proceed to make in summary manner a provisional assessment of the amount by which the profits of the chargeable accounting period, exceed the standard profits, and the amount of excess profits tax payable thereon. (2) Before making such provisional assessment the Excess Profits Tax Officer shall give notice in the prescribed form to the person on whom, assessment is to be made of his intention to do so, and shall with the notice forward a statement of the amount of the proposed assessment, and the said person shall be entitled to deliver to the Excess Profits Tax Officer at any time within fourteen days of receipt of the said notice a statement of his objections, if any, to the amount of the proposed assessment. (3) On expiry of one month from the date of service of the notice referred to in Sub-section (2), or earlier if the assessee agree to the proposed assessment, the Excess Profits Tax Officer may, after taking into account the objections, if any, made under Sub-section (2), make a provisional assessment, and shall furnish a copy of the order of assessment to the assessee. Provided that assent to the amount of assessment, or failure to make objection to it, shall in no way prejudice the assessee in relation to the regular assessment. (4) In making any such provisional assessment the Excess Profits Tax Officer shall make allowances for any deficiencies of profits for previous chargeable accounting periods which are under the provisions of Section 7 to be set off against the excess profits of the chargeable accounting period in respect of which the assessment is being made. Provided that where such deficiencies of profits have not been determined under Sub-section (1) of Section 14, the Excess Profits Tax Officer shall estimate the amount thereof to the best of his judgment. (5) There shall be no right of appeal against a provisional assessment under this section, and it shall, until a regular assessment is made in due course under Section 14, determine the amount of excess profits tax due from the assessee. (6) If when a regular assessment is made in due course under Section 14, the amount of Excess Profits Tax payable thereunder is found to exceed that determined as payable by the provisional assessment, it shall be reduced by the amount determined as payable by the provisional assessment. (7) If when a regular assessment is made in due course under Section 14, the amount of Excess Profits Tax payable thereunder is found to be less than that determined as payable by the provisional assessment, any excess of tax paid as a result of the provisional assessment shall be refunded to the assessee together with interest at 5 per cent. per annum calculated from, the date of payment of such excess tax to the date of the order of refund, both days inclusive."
(3.) On 10-9-1947, the E. P. T. Officer by a provisional assessment order, assessed the tax payable at Rs. 6,00,000/-, pending regular assessment. On 10-10-1947, he issued a demand notice for the same. As the assessee defaulted in payment, a requisition was made on 10-3-1948, under Section 46(2), Income Tax Act, which has been made applicable under Section 21, E. P. T. Act. The relevant part of Section 46(2), I. T. Act is as follows: "46(2). The Income Tax Officer may forward to the Collector a certificate under his signature specifying the amount 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.........." It will be observed that the Section itself does not specify the legislation to which recourse will be had for realising the amount due. In West Bengal, it is the Bengal Public Demands Recovery Act 3 of 1913, in Madras, it is the Madras Revenue Act 2 of 1864, in Bombay, it is the City Revenue Act 2 of 1876. Upon the requisition being made, certificate proceedings were started, being certificate case No. 2053 I. T. of 1947-48. Notice under Section 7, Bengal P. D. R. Act was served upon Nandram Agarwalla as the Karta. He filed objection under Section 9.;