9911796707
TMI Blog1994 (4) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... e nature of garnishee proceedings. Under these proceedings, a stranger is served with a notice not to pay his own creditor but to some other person who has obtained a final judgment against that creditor. To initiate garnishee proceedings, there must be an enforceable debt. The expression "may become due", "may subsequently hold money" applies to what may become due or may be subsequently held pursuant to relationship such as that of a manufacturer and a wholesaler, employer and employee between the assessee and the garnishee on the date when the notice is issued. Sub-section (5) of section 14 of the Act provides for objection by the garnishee denying his liability to the dealer on the date of the notice. In such an event section 14 of the Act cannot be availed of. Section 12B of the Act provides for the payment of advance tax every month on the basis of monthly returns furnished by a dealer. In case a monthly return filed is incomplete or incorrect, the assessing authority may proceed to assess the dealer provisionally for that month to the best of his judgment by recording reasons after affording an opportunity of hearing to the dealer concerned. A demand notice would follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into service only when the other person is due with any amounts or may subsequently hold money to the assesseedefaulting dealer. In the present case, second respondent has categorically asserted in annexure C that it did not hold any amounts of the assessee on the date of service of notice, as such declaration is to be made in favour of the petitioner declaring that the second respondent is not obliged to pay the sum as demanded. The respondent No. 1 could not initiate proceedings for recovery or issue notice under section 14 without passing a provisional assessment order as required under section 12B(2) as the monthly returns filed by the petitioner under section 12B were incomplete for want of payment of advance tax, inasmuch as cheques given by the petitioner were dishonoured. 3.. The first respondent has filed the statement of objections contending that the petitioner is not entitled for any relief sought for in this writ petition for various reasons stated therein. The petitioner has submitted monthly statement in form 3 along with advance payment of tax by way of cheques as provided under section 12B(1) of the Act. All the cheques issued by the petitioner in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble under section 12B(1) falls in the category of "any other amount due" and is recoverable under section 13. The petitioner is habitual defaulter and is not entitled for the reliefs sought for. Under the circumstances, the first respondent sought for dismissal of the writ petition. 4.. Sri H.L. Dattu, learned counsel for the petitioner, contended that (1) The petitioner sent monthly statements under section 12B of the Act accompanied by cheques towards payment of advance tax. When the said cheques were dishonoured or bounced such statements should be considered as incomplete or incorrect. If that be so, the assessing authority should have assessed the dealer provisionally to the best of his judgment recording the reasons for such assessment after giving reasonable opportunity to the dealer of being heard and thereafter proceeded to demand and collect the tax on the basis of such assessment. In this case in the absence of any provisional assessment order the authorities could not demand and collect tax. (2) Under section 14 of the Act the assessing authority at any time or from time to time can issue notice in writing requiring any person from whom money is due or may become du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to issue notices under section 14 with regard to the amount that may become due to the dealer. (3) The petitioner having collected tax from public has sent cheques along with the statements filed under section 12B(1) of the Act, which cheques were not honoured for want of funds. The petitioner has suppressed about bouncing of cheques. The petitioner having not come to the court with clean hands cannot be allowed to utilise the amount, which was collected as tax from the public detrimental to the interest and loss of revenue of the State. According to him this Court on the facts and circumstances of the case may decline to grant any relief to the petitioner. In support of his submissions, the learned Government Advocate, relied on the following decisions: (1) [1957] 31 ITR 603 (SC); AIR 1957 Cal 1 (Jagannath Hanumanbux v. Income-tax Officer); (2) AIR 1957 SC 227 (A.M. Allison v. B.L. Sen). 6.. I have carefully considered the submissions made by the learned counsel on either side. 7.. The facts which are not in dispute are the following: The petitioner filed statements under section 12B(1) of the Act. Those statements were accompanied by cheques towards pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cheques bounced, the statements filed under section 12B(1) cannot be considered as incorrect or incomplete. Moreover, it must appear to the assessing authority the statements filed under section 12B(1) to be incorrect or incomplete. Further, it is an enabling provision to the assessing authority to assess the dealer provisionally for the particular month to the best of his judgment in the situation stated in section 12B(2). Hence, I am unable to agree with the contention advanced by Sri Dattu, learned counsel for the petitioner, that no demand or collection of tax could be made without passing the provisional order. I hold that the amount covered by the cheques accompanying the statements filed by the petitioner under section 12B(1) is deemed to be an amount due for the purposes of section 13 of the Act, as such under section 13(3) such an amount due could be recovered. Once I have reached this conclusion, I must state that the assessing authority could invoke section 14 of the Act for recovery of tax due from the petitioner. 12.. The second respondent as can be seen from annexure C in response to the impugned notices, annexures A and B, has categorically stated that as on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
