D.Basu, J. - (1.) The question involved in this appeal is a short one of law on which much fight is not available from reported decisions. The Meghlibundh Tea Company was liable for income-tax for a certain period. It first sold its tea garden assets to a third party and thereafter on 23-9-47, it changed its name to the Economic Investment Corporation Limited under Section 11 (5) of the Indian Companies Act, 1913. Though the Economic Investment Corporation, that is to say, the appellant before us, duly intimated the Income-tax Officer of the aforesaid change in the name of the company, the Income-tax Officer (Respondent No. 3) made his assessment for the relevant period (1946-47) on the Meghlibundh Tea Company. Thereafter a Certificate proceeding under the Public Demands Recovery Act was started on the allegation that a sum of Rs. 25,000 and odd was due on account of Income-tax from the Meghlibundh Tea Company. At a later stage or the Certificate Proceedings, the Income-tax Officer requested the Certificate Officer that the name of the Economic Investment Corporation be substituted in place of the Meghlibundh Tea Company, Notice having been served under Section 7 of the Public Demands Recovery Act upon the Corporation, that is, the appellants, objection was raised thereto and the certificate against the appellant was cancelled (vide page 46 of the paper book). Thereafter, a notice, under Section 46 (5A) of the Income-tax Act, 1922 was issued for the said demand upon the Manager of the Allahabad Bank Limited, vide page 50 of the paper book, to the following effect: "A sum of Rs. 25911.81 P, is due from Messrs. Economic Investment Corporation Ltd. on account of Income-tax ....., I am to request you, under Section 46 (5A) of the Income-tax Act, 1922, to pay to me forthwith any amount due from you to, or held by you for, or on account of the said Company of 12, Mysore Road, Cal-26 up to the amount of arrears shown above.... Towards the end of this notice issued by the Income-tax Officer, it is stated: "Further if you fail to make payment in pursuance of this Notice to me as Income Tax Officer, further proceedings may be taken by and before the Collector on the footing that this Notice has the same effect as an attachment by the Collector in exercise of his powers under the proviso to Sub-section (2) of Section 46." It is upon the service of the above notice upon the Bank that the appellant brought his application under Article 226 of the Constitution on the 12th of June, 1959 (pp. 8 to 60 of the paper book) and on contest, the Rule was discharged by the Judgment or Banerjee, J. at pp, 86-97).
(2.) Before Banerjee, J. two points were taken at the hearing. (1) That the petitioner as Company could not be proceeded against as the successor of the Meghlibundh Tea Company without assessment proceedings having been taken against the petitioner Company and (2) that the demand under Section 46 (5A) could not be made from the petitioner company in view of the bar under Section 46 (7) of the Act. Before us, on appeal, it is only the first ground which has been pressed by Dr. Pal on behalf of the appellant.
(3.) "At the outset, it must be pointed out that by issuing a notice under Section 46 (5A), the Income-tax Officer is not seeking to pro- ceed against the petitioner company as a 'successor' of the Meghlibundh Tea Company as has been assumed but is seeking to realise the income-tax demand from the Bank who holds money on behalf of the Meghlibundh Tea Company, whose name has since been changed into that of the appellant. Section 46 (5A) runs as follows:--"The Income-tax Officer 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 Income-tax Officer) 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 Income-tax Officer, ....." The failure to comply with this notice is given in the 5th paragraph of that, sub-section as follows:-- "If the person to whom a notice under this sub-section is sent fails to make payment in pursuance thereof to the Income-tax Officer, further proceedings may be taken by and before the Collector on the footing that the Income-tax: Officer's notice has the same effect as an attachment by the Collector in. exercise of his powers under the proviso to Sub-section (2) of Section 46". When read with the said proviso, the meaning of this would be that if the person upon whom the notice under Section 46 (5A) has been served fails to comply with the notice, the moneys specified in that notice may be recovered from such person either by resorting to the proceedings under the Revenue Recovery Act, 1890 or as an attachment in a civil proceeding under the Code of Civil Procedure. The only question, therefore, which arises in this context is does the Allahabad Bank hold any money for or on account of the Meghlibundh Tea Company, who was the assessee for the demand in question ? For an answer to that question, we must turn to the provision in Section 11 (5) under which the change in name stated at the outset took place. In the corresponding provisions of the Companies Act, 1956, it is provided in Section 21, that a Company may, by special resolution and with the approval of the Central Government signified in writing, change its name. In Section 23 (1), it is stated that when a company changes its name under Section 21, the Registrar shall enter the new name on the register in the place of the former name, and shall issue a fresh certificate of incorporation with the necessary alterations embodied therein .....";