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TMI Blog1969 (3) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... of the First Schedule to the Tariff Act, 1934, at 27 per cent. ad valorem. The firm filed two suits asking for refund of excess duty claiming that the on was dutiable only under item 27(8) at 2 as. 6 ps. per imperial gallon. The suits were filed against the Collector of Customs, the Assistant Collector of Customs for Appraisement and the Union of India. The suits were successful and decrees were passed against the Union of India for refund of the amount charged in excess. In one suit the decree was for payment of Rs. 43,723 with interest at 6 per cent. per annum from 1st day of April, 1952, until realisation. In the second suit the decree was for Rs. 75,925 with similar interest. Since the firm had not paid a sum of Rs. 18,08,667.72 as ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the learned single judge was right in dismissing the application of the Collector of Customs for the adjustment of the decrees. Order 21, rule 2, of the Code of Civil Procedure, takes note of payments out of court to decree-holders and provides that where any money payable under a decree of any kind is paid out of court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the court whose duty it is to execute the decree, and the court shall record the same accordingly. It is also provided that the judgment-debtor also may inform the court of such payment or adjustment, and apply to the court to issue a notice to the decre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y ........... (5A) 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, either forthwith upon the money becoming due or being held or at or within the time specified in the notice (not being before the money becomes due or is held) so much of the money as is sufficient to pay the amount due by the taxpayer in respect of arrears of income-tax and penalty or the whole of the money when it is equal to or less than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creditor. By a parity of reasoning this amount, which was with the Collector of Customs, could be asked to be deposited with the income-tax authorities under section 46(5A). The argument is extremely technical for that the firm is entitled to get a double benefit of the decree, first by having the decretal amount paid to the benefit of the firm and then to recover it again from the Union of India. It is contended lastly that the notice of the Income-tax Officer spoke of income-tax and/or penalty whereas the amount was taken towards payment of super-tax due from the firm. It is, however, conceded in the face of authorities cited at the Bar that the super-tax is also a kind of income-tax and, therefore, the notice could issue in the form it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Code of 1859) the learned judges observed that section 206 covers cases of voluntary payment. The debtor was protected by treating the payment as being made through the court. The exact point we are dealing with was not before the court. In Mahiganj Loan Office Ltd. v. Behari Lal Chaki there was a scheme framed by the depositors of a banking company for return of their deposits in spite of opposition from decree-holder depositor of the company. The scheme was sanctioned by the court. The scheme was binding on the decree-holder but it was not treated as an adjustment within Order 21, rule 2, of the Code of Civil Procedure. The reason given was that the adjustment must be to the satisfaction of the decree-holder and must be with the consent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was any understanding between the parties that sums spent by the judgment-debtor on repairs would be set off against the decretal amount and therefore Order 21, rule 2, of the Code of Civil Procedure, was held inapplicable. In none of the cases the point of a garnishee order was considered. In our opinion, a case of a garnishee payment or one made under section 46(5A) of the Income-tax Act of 1922 stands on a different footing and if the payment has been legally made out of court in full and final discharge of the liability under a decree, there is no reason why the judgment debtor cannot move the court for getting the adjustment or payment certified. The payment was required to be certified under Order 21, rule 2, of the Code of Civi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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