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TMI Blog2010 (7) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... 613 - KARNATAKA HIGH COURT] . We have therefore no authority but to set aside the order dated November 29, 2007 passed by the 3rd Respondent under Rule 35 of the Rules. We however make it clear that this will not prevent the NMMC from proceeding to recover the amount of cess liability in any other manner authorised by law. In our opinion, the petitioners have equally efficacious alternate remedy by filing the appeal u/s.406 of the BMPC Act. It would be open to the petitioners to raise all the contentions before the learned Judge in the appeal u/s.406 of the BPMC Act. We do not express any opinion on these contentions. The order dated November 29, 2007 passed by the Cess Officer of the NMMC is quashed and set aside with liberty to the NMMC to recover the cess liability in any other manner authorised by law. Rule is made partly absolute in the aforesaid terms, with no order as to costs. - P.B.MAJMUDAR R.G.KETKAR, JJ. Mr. Jitendra Jain with Mr. Nilesh Gala i/by M/s. Shah Sanghavi for Petitioners. Mrs. S.S. Bhende, AGP for Respondent Nos.1 5. Mr. A.A. Garge for Respondent Nos.2 6. JUDGMENT : (Per R.G.Ketkar, J.) 1. By this petition under Article 226 of the Constitution of India, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... December, 2006 passed under Rule 25(5) of the Rules. Pursuant to this order, the 3rd Respondent passed an order under Rule 35 on 27th December, 2006 attaching the Bank Account No.CC-653 in the Dombivali Nagari Sahakari Bank Limited to protect the legitimate revenue of the Corporation which is impugned in this petition. The petitioners also challenged the prohibitory order dated 5th November, 2007 passed by the 3rd Respondent u/s.152 (J) (3) of the Bombay Provincial Municipal Corporations Act, 1949 (for short the Act) attaching the goods, list whereof was annexed to the said order. 2. Heard Mr.Jitendra Jain, learned counsel for the petitioners, Ms.S.S.Bhende, learned AGP for Respondent Nos.1 5, and Mr.A.A.Garge, learned counsel for Respondent Nos.2 6. Mr.Jain, for the petitioners submitted that the order dated 29th November, 2007 passed by the 3rd Respondent attaching the cash credit account is wholly unsustainable. He submitted that basically it is an overdraft facility and the amount is not payable by the Bank. 3. As far as the prohibitory order dated 5th November, 2007 passed by the 3rd Respondent u/s.152 (J) of the Act is concerned, he submitted that the said order passed by 3r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the receipt of the Income- tax Officer shall constitute a good and sufficient discharge of the liability of such person to the assessee to the extent of the amount referred to in the receipt. Any person discharging any liability to the assessee after receipt of the notice referred to in this sub-section shall be personally liable to the Income-tax officer to the extent of the liability discharged or to the extent of the liability of the assessee for tax and penalties, whichever is less. 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. Where a person to whom a notice under this sub-section is sent objects to it on the ground that the sum demanded or any part thereof is not due to the assessee, or that he does not hold any money for or on account of the assessee then nothing contained in this section shall be deemed to require such person to pay any suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the money becomes due or is held as aforesaid), so much of the money as is sufficient to pay the amount due by such dealer or person in respect of the arrears of cess, penalty, interest, sum forfeited, fine or the whole of the money when it is equal to or less than that amount. Explanation - For the purpose of this rule, the amount of money due to a dealer or person from, or money held for or on account of a dealer or person by any person, shall be calculated after deducting therefrom such claims, if any, lawfully subsisting, as may have fallen due for payment by such dealer or person to such person. (2) The Commissioner may at any time or, from time to time, amend or revoke any such notice, or extend the time for making any payment in pursuance of the notice. (3) Any person making any payment in compliance with a notice under this rule shall be deemed to have made the payment under the authority of such dealer or person and the receipt of the Commissioner shall constitute a good and sufficient discharge of the liability of such first mentioned person, to the extent of the amount referred to in the receipt. (4) Any person, discharging any liability to such dealer or person a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however make it clear that this will not prevent the NMMC from proceeding to recover the amount of cess liability in any other manner authorised by law. 9. As far as the prohibitory order dated November 5, 2007 passed by the 3rd Respondent is concerned, the petitioners have challenged the same on the ground that the said order is without jurisdiction and contended that only the Commissioner of NMMC could have passed the said order. On the other hand, the learned counsel for Respondent Nos.2 6 submitted that he is one of the cess authorities u/s.152E of the BPMC Act, and there is no substance in the aforesaid submission raised by the learned counsel for the petitioners. 10. In our opinion, the petitioners have equally efficacious alternate remedy by filing the appeal u/s.406 of the BMPC Act. It would be open to the petitioners to raise all the contentions before the learned Judge in the appeal u/s.406 of the BPMC Act. We do not express any opinion on these contentions. 11. In case the petitioners prefer the appeal within eight weeks from today, the learned Judge shall decide the same in accordance with law by taking into consideration the fact that the petitioners were bonafide pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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