Sinha, J. - (1.) The facts of this case are shortly as follows. The petitioner Matilal Shroff alleges that he is the karta of a Hindu undivided family governed by Mitakshara law carrying on a joint family business under the name and style of Dhanraj Bhairadan in Calcutta. This firm was the assessee in respect of the assessment years 1941-42. I am not concerned in this application as regards the assessment, which was made in February, 1946 ex parte, because no one appeared at the time of assessment. The subject matter of this application relates to a period after the assessment. The firm was assessed for a sum of Rs. 30,229-4-0. On the 3rd of March, 1947, the Income-tax Officer acting under sub-section 2 of section 46 of the Indian Income-Tax Act, issued a certificate which was forwarded to the Collector, 24-Parganas and filed in the office of the Certificate Officer on or about the 21st March, 1947 Thereafter, notice under section 7 of the Public Demands Recovery Act was sent by registered post, but it was returned with the remark "left". An attempt was made to serve it through a process-server, but it could not be effected as the certificate debtors could not be traced The Certificate Officer gave several reminders to the Income-Tax Department that the address of the certificate-debtors be furnished, but the Income-Tax Officer kept on replying that enquiries were being made and that the particulars would be supplied when available. On or about the 11th May, 1950, a notice was given that if the report is not received on or before the 25th June, 1950, the case would be cancelled. As no reply was received by that date, the Certificate Officer by his order dated the 30th June, 1950, cancelled the certificate The order sheet states as follows : "30.6.50. I.T.O.'s report still not received. Case cancelled." This order of cancellation was without notice either to the certificate-holder or to the certificate-debtor. It appears that on the 15th March, 1952, the Certificate Officer received a letter from the Income-Tax authorities furnishing a list of assets of the certificate debtor at Bikaner and requesting immediate attachment of his assets. On the 18th April, 1952, the following order was made : Record received from R.K. today. Seen I.T.O's No. IV(I) III-R/G dated 14.3.52. The case is restored. Send a certificate under Act I to Collector, Bikaner. Put on 23.6.52. The case was cancelled under section 44(2), P.D. Act. But this certificate comes under section 4 of the P.D.R. Act and the certificate holder is Collector in this case. As such the cancellation of the certificate for reasons stated in the order dated 30.6.50 was not in order and the case is restored.
(2.) Thereafter the certificate was transmitted under the provisions of the Revenue Recovery Act to the Collector. Bikaner, who in his turn transmitted it to the Collector. Churu (Bikaner) for necessary action. On the 19th June, 1952, the certificate debtor filed an objection petition under section 9 of the Bengal Public Demands Recovery Act (hereinafter referred as the Act) praying for cancellation of the certificate, for withdrawal of the execution proceedings at Bikaner and for other reliefs; The Certificate Officer. 24-Parganas, thereupon stayed execution and fixed 18th July, 1952, for hearing the objection. The hearing was adjourned from time to time and it was finally heard on the 16th August, 1952 On the 11th September, 1952, this Rule was taken out, calling upon the opposite parties to show cause why an appropriate writ or order should not be made ordering them not to give effect to the order dated the 18th April, 1952, and 22nd April, 1952, or why a writ in the nature of Certiorari should not be issued for quashing the same or why such other or further order or orders made as to this court may seem fit and proper. The actual order of the Certificate Officer on the application under section 9 of the Act was passed on the 19th September, 1952, whereby he rejected the application.
(3.) The learned Counsel for the petitioner argues that the order of restoration dated the 18th April, 1952, is bad, because:- (a) the Certificate Officer was in error in thinking that the certificate was made under section 4 of the Public Demands Recovery Act, whereas he should have held that it was made under sections 5 and 6 of the said Act and therefore, it was not correctly made, (b) that in any event the Certificate Officer had no jurisdiction to make an order for restoration of the certificate once having cancelled it.;