K.C.Das Gupta, J. - (1.) These Rules are directed against proceedings now pending against the petitioners before the Collector of 24-parganas for their arrest and detention for recovery of Rs. 41,39,617/13/0 on account of income-tax and excess profit tax. This sum is made up of different sums said to be due from a Hindu undivided family, Messrs. Sriram Jhabermal, of which Nandaram Agarwalla was the Karta, on account of income-tax for the years 1944-45, 1945-46, 1946-47 and 1947-48 and on account of several assessments on account of excess profits tax. In each case the Income-tax Office sent certificate to the Collector of 24-parganas, Alipore stating that a certain sum was due on account of income-tax or excess profits-tax and that it was in arrears. In one case the amount was mentioned as due from Messrs. Sriram Jhabarmal while in the other case the sums are said to he due from Nandaram Agarwalla, as Karta of the undivided Hindu family of Messrs. Sriram Jhabarmal. In all these cases certificate proceedings were commenced under the Public Demands Recovery Act at the instance of the Collector for recovery of the sums said to be in arrears. While these proceedings were pending, the commissioner of income-tax as representing the Union of India prayed to the Collector of 24-parganas for recovery of the amounts mentioned in the certificate sent by the Income-tax Officer by arrest and detention of Nandaram Ayarwalla, Karta of the undivided Hindu family of Messrs. Sriram Jhabarmal and Kashiram Agarwalla, a member of the Hindu undivided family of Messrs. Sriram Jhabarmal. The Collector proceeding to use for the recovery of the sum the powers which a civil Court has in recovering amounts due under decree issued notice in accordance with the provision of Order 21, Rule 37 of the Code of Civil Procedure, on these persons to show cause why they should not be arrested and detained. Showing cause they contended inter alia that the Collector had no jurisdiction to proceed in this manner. The Collector has overruled that contention and has directed that evidence should be taken, apparently to ascertain whether the conditions mentioned in the proviso to Section 51 of the Code of Civil Procedure have been satisfied or not.
(2.) The petitioners now ask for this Court's interference under Article 227 of the Constitution, their case being that the Collector has no jurisdiction to recover the alleged arrears in the manner in which a Civil Court may proceed for recovering the amounts due under a decree.
(3.) The Collector's jurisdiction if it exists at all to recover the arrears in this manner, rests entirely on the provisions of Section 46 (2) of the Income-tax Act. These provisions are in these words : "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. 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 Code of Civil Procedure, 1908 (5 of 1908), a Civil Court has not the purpose of the recovery of an amount due under a decree.";