MRS. RUMA PAL, J. :
The primary issue involved in this writ proceeding is the nature of power of the IT authorities under s. 281 of the IT Act, 1961 (referred to hereafter as 'the Act'). The issue arises in the following manner :
The petitioner claims to be a relative of one Vishwanath More who gifted a relief bond to the petitioner. The relief bond was for Rs. 2 lakhs bearing interest at nine per cent per annum payable annually from July, 1988, and was repayable on 1st July, 1993. Vishwanath More executed a document on 27th July, 1988, which stated, inter alia,
'That the transfer formalities of the said relief bonds could be completed only after receipt of the said bonds from the said bank. When I shall execute deed of gift and hand over possession of the said bond to Mrs. Preeti Rungta.
That I have divested myself from all the title, rights and interest on the said bonds and Mrs. Preeti Rungta shall be the absolute owner from this date and no person whatsoever has any right, title and/or interest of any kind whatsoever thereon.'
Under cover of a letter dt. 11th April, 1989, addressed to the Reserve Bank of India (RBI), the petitioner enclosed the certificate of the bond as well, as the form of transfer executed by Vishwanath More in her favour as well as the interest warrants issued in the name of Vishwanath More. The name of the petitioner has been noted by the RBI on the certificate as a transferee, the date of transfer being given as 23rd March, 1989. According to the petitioner, she has been paid interest on the said bond upto the year 1991 by the RBI.
On 16th Feb., 1992, Vishwanath More died. On 18th Feb., 1992, an order was issued by respondent No. 1 under s. 281 of the Act in respect of Vishwanath More stating that Vishwanath More had made an absolute irrevocable gift of Rs. 2 lakhs to the petitioner on 27th July, 1988, and that Vishwanath More was in default in making payment of income-tax/wealth-tax and penalties to the tune of Rs. 18,79,773 which had been lying unpaid since 1978. This order (which has been impugned in these proceedings) concludes with the following sentences :
'It is thus clear that the assessee parted with his aforesaid assets in hand without discharging his liability to pay tax, interest and penalty due from him at the time of making the above gift.
In exercise of the powers under s. 281 of the IT Act, 1961, I do hereby hold the aforementioned gift dt. 27th July, 1988, made by Shri Vishwanath More to Mrs. Preeti Rungta as void.'
An attachment notice under s. 226(3) was enclosed with the copy of the impugned order addressed to the RBI for attachment of the bond and to restrain the RBI from paying all the maturity amount as well as interest to the petitioner. Copies of the impugned order were also sent to the petitioner and to Vishwanath More for information.
In wealth-tax proceedings for the asst. yr. 1989-90, the petitioner disclosed that she had received the gift of the nine per cent relief bond for Rs. 2 lakhs from Vishwanath More. The WTO disbelieved the petitioner and passed an order on 2nd March, 1992, saying :
'It is strange to see that the alleged donor did not file the return for the last few years including this year and moreover there was a proposal to write off huge outstanding demand. It is definite that such a person cannot make any gift when he did not have sufficient fund to meet his outstanding demand. As such the alleged gift was nothing but an investment out of undisclosed income of the assessee.'
On 2nd March, 1992, notice under s. 148 of the Act was issued to the petitioner with respect to the asst. yr. 1989-90 on the ground that income chargeable to tax had escaped assessment for the assessment year in question.
On 27th April, 1992, a notice of demand was issued under s. 30 of the WT Act, 1957, in respect of the asst. yr. 1989-90.
The petitioner applied for payment of interest on the bond for the year 1922 to the RBI through the Bank of India. The Bank of India did not credit the petitioners account with the interest on account of an attachment order issued by the RBI. On 18th Jan., 1993, the petitioner asked for a copy of the attachment order from the Bank of India to which the RBI had sent the attachment order. The Bank of India sent the communication received by it from the RBI to the petitioner. The communication was to the effect that the interest warrant on the bond had been paid by the RBI through oversight as there was an attachment order by the IT authorities. The Bank of India through which the interest was to be credited to the petitioners account was asked to stop the payment of interest to the petitioners account.
2. The petitioner has contended that s. 281 merely stated the consequences of the transfer made during the pendency of assessment proceedings. The section did not contemplate any adjudication or passing of any order thereunder. It is submitted that the validity of the transaction to which s. 281 of the Act may have any application could be adjudicated only by a competent civil Court in a properly instituted suit/proceeding after considering the evidence and contentions of the parties. It is submitted that no authority under the Act is empowered to decide upon the questions relating to title.
In the alternative, it has been submitted that if s. 281 contemplated the passing of an order by the ITO adjudicating upon title to property then the provisions of the section were violative of Arts. 14 and 19 of the Constitution particularly because no procedure for adjudication of any dispute had been laid down in the Act nor was any authority specified for adjudication of the dispute.
It is argued that s. 281 contained no provision for giving any opportunity to any affected person of making his representation nor was any appeal provided for against any order passed under s. 281 of the Act. According to the petitioner, s. 281 could not be read as ousting the jurisdiction of the civil Court without any specific provision to that effect.
Thirdly, it is submitted that the impugned order was otherwise bad as :
(i) it was passed against Vishwanath More who was already dead;
(ii) the order had been passed in violation of the principles of natural justice as far as the petitioner was concerned; and
(iii) the conditions precedent for the exercise of power under s. 281 had not been fulfilled.
Finally, it is submitted that in any event as far as the Department was concerned, the Department was treating the subject-matter of the gift as the petitioners income and not as the property of Vishwanath More at all and if the asset did not belong to Vishwanath More, proceedings under s. 281 could not lie.
As far as the attachment under s. 226(3) was concerned, it was stated that the attachment notice could only issue if the RBI was liable to pay or was holding the money for or on account of Vishwanath More. In this case, it is submitted that the bond has already been transferred and registered in favour of the petitioner much prior to issue of the notice under s. 226(3) of the Act. It is further submitted that in view of the objection by the petitioner that the sum demanded was not due to Vishwanath More as the defaulter-assessee or that no money was held by the RBI on his account, then no amount could be recovered on the basis of the impugned notice under s. 226(3) of the Act.
The respondents have submitted -
(i) that there was no gift by Vishwanath More of the relief bond to the petitioner as no formal deed of gift had in fact been disclosed in Vishwanath Mores returns.
(ii) that s. 281 had been introduced to avoid protracted litigation. The intention was to supplant the corresponding provisions of the CPC by allowing the ITO to adjudicate on questions of title. That s. 281 allowed the ITO to consider and decide the question whether the transaction was void or not without resorting to a suit. In any case, if the writ petitioner had disputed the question of transfer, there may have been a question of adjudication. In this case, she had accepted that the money had been transferred to her by Vishwanath More and had filed a WT return on such basis. It is submitted that if the petitioner was aggrieved by the order under s. 281, she could have preferred an appeal. Reliance has been placed on the decision in C. A. Abraham vs . ITO : [1961]41ITR425(SC) in this context.
(iii) that the conditions precedent to the exercise of the powers under s. 281 of the Act had been fulfilled :
(a) the proceedings were pending as far as Vishwanath More was concerned;
(b) there was an intention on the part of Vishwanath More to defraud the Revenue. This was clear from the fact that he had no money, but he had made a gift to a person of no known relationship;
(c) the relief bond would come within the definition of asset under s. 281;
(d) the relief bond could not be considered to be stock-in-trade. Stock-in-trade was merchandise held for sale in the regular course of business. A relief bond was in fact a 'security' within the meaning of s. 281 of the Act.
(iv) that the Court under Art. 226 of the Constitution could decide whether the gift to the petitioner was a device resorted to by a defaulting assessee to avoid payment of tax as all the facts were before the Court.
(v) It is submitted that s. 281 was constitutional and that the principles of natural justice had been specifically excluded because promptness was essential and the exclusion was justified.
(vi) Finally it is submitted that if s. 281 applied, s. 226(3) automatically applied. If the notice of attachment was not issued the petitioner would have removed the amount of Rs. 2 lakhs on maturity of the bond.
The respondents had relied upon the following decisions : Inayat Hussain vs . Union of India : [1980]122ITR227(Bom) ; C. A. Abraham vs. ITO (supra); McDowell & Co. Ltd. vs . CTO : [1985]154ITR148(SC) ; K. R. Loganathan vs . Union of India : [1988]174ITR645(Mad) in support of their submissions.
3. In my opinion, the writ application must be allowed. The most immediate and obvious reason is that the impugned order was passed against Vishwanath More when Vishwanath More was already dead. The impugned order having been passed against a non-existent person cannot, on that ground alone, itself survive.
4. The second reason relates to the scope of s. 281 of the Act. Sec. 281 reads as follows :
'281. Certain transfers to be void. - (1) Where, during the pendency of any proceeding under this Act or after the completion thereof, but before the service of notice under r. 2 of the Second Schedule, any assessee creates a charge on, or parts with the possession (by way of sale, mortgage, gift, exchange or any other mode of transfer whatsoever) of, any of his assets in favour of any other person, such charge or transfer shall be void as against any claim in respect of any tax or any other sum payable by the assessee as a result of the completion of the said proceeding or otherwise :
Provided that such charge or transfer shall not be void if it is made -
(i) for adequate consideration and without notice of the pendency of such proceeding or, as the case may be, without notice of such tax or other sum payable by the assessee; or
(ii) with the previous permission of the Assessing Officer.
(2) This section applies to cases where the amount of tax or other sum payable or likely to be payable exceeds five thousand rupees and the assets charged or transferred exceed ten thousand rupees in value.
Explanation. - In this section, assets means land, building, machinery, plant, shares, securities and fixed deposits in banks, to the extent to which any of the assets aforesaid does not form part of the stock-in-trade of the business of the assessee.'
On a plain reading of the section, it is clear that the section is declaratory and not procedural in the sense that it does not itself provide for any mode of enforcement of the rights created under the section. The language of s. 281 may be compared with that of s. 222.
Sec. 222 provides -
'222. Certificate to Tax Recovery Officer. - (1) When an assessee is in default or is deemed to be in default in making a payment of tax, the Tax Recovery Officer(TRO) may draw up under his signature a statement in the prescribed form specifying the amount of arrears due from the assessee (such statement being hereafter in this Chapter and in the Second Schedule referred to as certificate) and shall proceed to recover from such assessee the amount specified in the certificate by one or more of the modes mentioned below, in accordance with the rules laid down in the Second Schedule, -
(a) attachment and sale of the assessees movable property;
(b) attachment and sale of the assessees immovable property;
(c) arrest of the assessee and his detention in prison;
(d) appointing a receiver for the management of the assessees movable and immovable properties.'
Thus, it can be seen that s. 222 provides for the mode of recovery of a tax due, but no such machinery for enforcement of a right is referred to in s. 281.
Upon receipt of the certificate drawn up under s. 222, the TRO is required under r. 2 of the Second Schedule to the Act to give notice to the defaulter to pay the amounts specified in the certificate within fifteen days from the service of the notice and intimating that in default steps would be taken to realise the amount under the Schedule. Rule 16 to the Second Schedule prohibits alienation by the defaulter of his property subsequent to service of notice under r. 2.
If the payment is not made within the time specified, the TRO can proceed to realise the amount, inter alia, by attachment and sale of the defaulters movable and immovable property.
Rule 11 of the Second Schedule provides that where any claim is preferred to, or any objection made to the attachment and sale of any property in the execution of the certificate on the ground that the property is not liable to such attachment and sale, the TRO is required to investigate the claim or objection in the manner specified.
Sub-r. (6) of r. 11 of the Second Schedule provides that the party whose claim or objection is rejected may institute a suit in a civil Court to establish his right which he claims to the property in dispute but subject to the result of the suit the order of the TRO would be conclusive. The entire process for recovery under the Second Schedule commences with service under r. 2 and all the rules in the Second Schedule relate to the protection of the Revenues rights subsequent to the issue of notice under r. 2. Sec. 281, in terms, relates to the right of the Revenue prior to the issuance of notice under r. 2. The procedure under the Second Schedule of the Act for enforcement of the rights of the Revenue, vis-a-vis the assessee would not be available for enforcement of a right under s. 281 and, in my opinion, the procedure envisaged in the Second Schedule to the Act does not apply at a stage when s. 281 operates. Even assuming that the procedure under the Second Schedule is available to the IT authorities at the stage of s. 281, i.e., prior to issuance of notice under r. 2 of the Second Schedule the authorities are not benefited in this case as it is nobodys case that the procedure under the Second Schedule had been followed by the ITO. Besides the further question would still remain, namely, whether the issue of invalidity of a transfer under s. 281 could be determined in proceedings under the Second Schedule.
The language of s. 281 corresponds to s. 53 of the Transfer of Property Act, 1882, and like s. 53 of the Transfer of Property Act can only give rise to a cause of action which must, in the absence of any prescribed procedure under the Act, be enforced by recourse to the general remedy of a suit.
In my view, therefore, s. 281 does not contemplate any order to be passed thereunder without a properly constituted proceeding.
The respondents submission that the order under s. 281 was legal because the petitioner had never questioned the transfer of Rs. 2,00,000 by the assessee pending the proceedings, cannot be accepted. The ITO is a creature of statute whose jurisdiction is limited by statute and there is no scope for jurisdiction being conferred on the ITO by implication or by consent. Either the ITO can justify his action with reference to the statute or it must be held that he had no jurisdiction at all to pass the order he did.
The impugned order not being an order which is envisaged under the Act, the question of preferring an appeal under the Act does not arise. The decision in L. Hazari Mal Kuthiala vs . ITO : [1961]41ITR12(SC) relied upon by the respondents, in so far as it is relevant, decides that the exercise of the power would be referable to a jurisdiction which conferred validity upon it and not to a jurisdiction under which it would be nugatory. In this case, the exercise of the power in passing the impugned order is not referable to any jurisdiction which could confer validity upon it.
The matters not res integra. Several Courts have had occasion to consider the scope of s. 281. The cited decisions support the view taken by me.
The first decision is B. A. Basith vs . ITO : [1981]128ITR434(KAR) , where it was held (at page 219 of CTR & 435 of ITR) :
'The section by itself does not contemplate making of any order by any authority. It is declaratory in nature.'
After the proceedings are completed, and if payment is not made and proceedings are taken for recovery by proceedings against certain properties and such recovery is objected to by the assessee or the transferees and it is contended that the transfer was with intent to defraud the Revenue, then such dispute will have to be adjudicated. Rules under Schedule II to the IT Act provide for adjudication of such claims. It is, therefore, clear that the declaration or order made by the ITO at this stage is without the authority of law.'
The Division Bench judgments of the Bombay High Court relating to the same writ petitioner also considered the ambit of the power under s. 281. The earlier case is Gangadhar Vishwanath Ranade vs . ITO : [1989]177ITR163(Bom) . The writ petitioner had challenged an order passed under s. 281 by the ITO after he had issued a show-cause notice, held an enquiry and recorded the evidence. It was argued that the ITO had no jurisdiction to pass such an order.
The Court dismissed the writ application by upholding the submission of the Revenue that the order passed under s. 281 was not an order in the proper sense of the term as it did not decide anything but merely demonstrated and recorded an intention on the part of the Revenue to proceed against the property of the defaulting assessee. The Court held :
'Neither s. 281 of the IT Act nor s. 53, sub-s. (1), of the Transfer of Property Act declares a transfer to be void ab initio, so that the title of the transferee is gone. It merely says what the law is. It is, therefore, really a substantive declaration of what the law of the land is. In the absence of s. 281, recourse could certainly be had to the provisions of s. 53, sub-s. (1), of the Transfer of Property Act. But as is clear, that would apply only in cases of transfers of immovable property. The legislature, in its wisdom, thought it necessary to introduce s. 281 in the IT Act. The question, however, is whether by introducing s. 281 in the IT Act, 1961, the legislature wanted to confer a power and jurisdiction which was exclusive upon the IT authorities or otherwise. In other words, the question is whether s. 281 as found in the IT Act which is pari materia with s. 53(1) of the Transfer of Property Act only declares what the law is, or whether s. 281, by its placement in the IT Act, provides a complete adjudicatory machinery for the IT Department to declare a transfer as fraudulent, whether of movable or immovable property. We are unable to think that s. 281, in the form in which it was, or in the form in which it is after its amendment in the year 1975, does anything further, except saying as to what the law is in respect of transfers effected during the pendency of any proceedings under the IT Act, which come within the mischief and circumstances laid down in s. 281. It does not thereby say that any conclusion or declaration by an authority entrusted with the functions to be performed under the IT Act will operate as conclusive or adjudicatory. It merely has the character of an expression of an intention or opinion on the part of such authority, that it intends to treat the transfers as affected by s. 281 and, therefore, not standing in the way of recovery proceedings to be taken by the TROs.'
It may be noted that arguments on the constitutionality of s. 281, similar to those made before me in this case, were negatived by the Court by restricting the operation of the section in the manner quoted above.
In the second case, namely, Gangadhar Vishwanath Ranade vs . TRO : [1989]177ITR176(Bom) , proceedings had been initiated under r. 11 of the Second Schedule by the TRO in respect of the assessee. The question was whether the TRO could, in such proceedings, declare the transfer of property void under s. 281. The Division Bench considered the earlier judgment and held that even in proceedings under r. 11 of the Second Schedule, the TRO could not entertain a claim on behalf of the tax authorities that the transfer by the assessee was void upon the ground that it was made while proceedings against him were pending with the intention of defrauding the Revenue. In other words, the Court held that the tax authorities could sue the assessee and his transferee in the civil Courts for relief upon the basis of the law enunciated in s. 281 and obtain interim relief in such suit to protect the property.
The decision in Inayat Hussain vs. Union of India (supra) relied upon by the respondents is irrelevant. In that case, the scope of s. 281 and r. 16 of the Second Schedule to the Act was compared in a suit filed by the transferee against the IT authorities. The decision does not touch the issue raised in this proceeding, but illustrates that the question of the rights under s. 281 was being decided in a civil suit.
The decision of a learned single judge of the Madras High Court in K. R. Loganathan vs. Union of India (supra) is a decision in three suits filed by the transferees of certain immovable property belonging to an assessee in respect of whom income-tax arrears were due and recovery proceedings pending. Issues were framed and evidence adduced for the purpose of deciding whether, inter alia, the transfer was fraudulent. It was in that context that the learned judge considered the evidence and came to the conclusion that the transferees were not bona fide purchasers without notice of the pending proceedings against the vendor.
Similarly, the decision in Union of India vs . Ram Peary Debi Kanoria : [1984]150ITR719(Cal) cited by the respondents related to the enforcement of s. 281 by the IT authorities by way of suit against the assessee and the transferee.
On the other hand, the respondents have been unable to cite any judicial authority for the proposition that the ITO has the power to pass an order declaring a transaction under s. 281 void independently of any judicial proceeding. In the case of TRO vs . Dilip Construction Co. : [1984]148ITR599(MP) , relied upon by the respondents, decrees had been passed against the assessee-company in favour of the private creditors. In applications for enforcement of the decrees and for rateable distribution, an order was passed, inter alia, allowing the IT authorities claim on the basis of a prohibitory order issued under r. 31 of the Second Schedule to the Act only to the extent of the claim of the tax due. The IT Department preferred a civil revision application claiming that the entire amount for which the prohibitory order had been issued should be made available to it. In that context, the learned single judge of the Madhya Pradesh High Court held :
'Sec. 281(1) has the effect of declaring a charge or transfer void as against any claim in respect of any tax or any other sum payable by the assessee when other conditions laid down in section are satisfied. The executing Court has, therefore, rightly held the charge created under those decrees to be void to the extent of legitimate claim of the IT Department which claim extends only to the arrears of tax due from the firm. Neither the firm nor those decree-holders have objected to that finding. I am not prepared to go any further and hold, as argued by the learned counsel for the applicant, that the charge is void altogether. In my opinion, it has been correctly found that it is void only to the extent of arrears of tax due from the firm Dilip Construction Co.'
This decision certainly does not support the argument of the respondents that the ITO has the power to pass an order on his own without holding any adjudication under s. 281 of the Act.
In an unreported judgment of the Division Bench of this Court in ITO vs. Shri Shri Ishwar Radha Govinda Jew relied upon by the respondents, no issue was raised in that matter regarding the scope of the power of the ITO under s. 281. It is further to be noted that the appeal was disposed of without any representation on the part of the assessee. The observations of the Division Bench, therefore, cannot be taken to be a decision on the issue.
5. The next question is whether the notice under s. 226(3) of the Act would subsist despite the striking down of the impugned order under s. 281 :
The section reads :
'226. Other modes of recovery. - (1) Where no certificate has been drawn up under s. 222, the Assessing Officer may recover the tax by any one or more of the modes provided in this section.
(1A) Where a certificate has been drawn up under s. 222, the TRO may, without prejudice to the modes of recovery specified in that section, recover the tax by any one or more of the modes provided in this section...........
(3)(i) The Assessing Officer or the TRO may, at any time or from time to time, by notice in writing, 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 Assessing Officer or the TRO 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 assessee in respect of arrears or the whole of the money when it is equal to or less than that amount.'
In other words, the attachment order under s. 226(3) can only issue to a person who owes or will owe money to the defaulting assessee.
The notice under s. 226(3) in this case is claimed to have been issued to the RBI on two bases : (i) that the transfer having been declared void by the impugned order under s. 281, the RBI was in fact, liable to pay Vishwanath More, and (ii) that there had been in fact no transfer at all to the petitioner.
As I have already held that the ITO could not in fact declare the transfer void in the manner purported to be done, the RBI could not be directed not to make payment to the petitioner until the transfer is declared void in properly constituted proceedings.
As far as the second ground for supporting the notice under s. 226(3) is concerned, in my opinion, the respondents must elect whether this money was Vishwanath Mores or the petitioners. They cannot contend it is Vishwanath Mores for the purpose of proceeding under s. 226(3) and the petitioners for the purpose of s. 147/148 at the same time. The respondents were unwilling to take a firm stand in the matter.
In CIT vs . Shyam Narain Mehrotra : [1980]122ITR313(Cal) , relied upon by the respondents, a Division Bench of the Calcutta High Court held that when income is earned, that income suffers taxation. When out of that income a gift is made, then that gift again suffers taxation. The Division Bench held that these are two different taxable events under different taxing laws and not a case of double taxation. It was also held that the Constitution did not contain any prohibition against double taxation and that where one transaction was made subject to different taxable events under different statutes, though cognate in nature, the concept of double taxation had no application.
The case has no application to the facts in the case before me. In that case, taxation at two stages was not on the basis of the inconsistent assumptions of fact as is the case before me. If the amount of Rs. 2 lakhs was the undisclosed income of the assessee, there was no question of the income having been that of Vishwanath More. The entire proceeding under s. 281 is based on the fact that it was Vishwanath Mores money which had been sought to be transferred in contravention of s. 281 to the petitioner. The argument of the respondent authorities, in order to sustain the action under s. 281, must be that the amount of Rs. 2 lakhs never validly belonged to the petitioner.
It would appear from the language in the transfer document executed by Vishwanath More that the gift had in fact been made. The Reserve Bank also transferred the bond presumably on the completion of all the necessary formalities by Vishwanath More.
However, I rest my decision on the fact that as long as the respondents continue to support the order under s. 281, they cannot contend that there had been no transfer which was liable to be declared void under that section. Thus, if there was a transfer in fact, it will remain valid until declared void and the Reserve Bank could not be said to owe money to the defaulter assessee, Vishwanath More.
Finally and, in any event, the impugned notice of attachment being issued after the death of Vishwanath More cannot be sustained.
For the reasons aforesaid, the impugned attachment notice is also liable to be set aside.
6. It is true that in McDowell & Co. Ltd. vs . CTO : [1985]154ITR148(SC) , the Supreme Court held (at page 142 of CTR & 161 of ITR) :
'It is neither fair nor desirable to expect the legislature to intervene and take care of every device and scheme to avoid taxation. It is upto the Court to take stock to determine the nature of the new and sophisticated legal devices to avoid tax and consider whether the situation created by the devices could be related to the existing legislation with the aid of emerging techniques of interpretation as was done in Ramsays case (1982) AC 300 : (1981) 2 WLR 449, Burmah Oils case (1982) Simons Tax Cases 30 and Dawsons case (1984) 1 All ER 530 : 2 WLR 226, to expose the devices for what they really are and to refuse to give judicial benediction.'
The observations of the Supreme Court in McDowells case (supra) do not amount to a direction on the Court to ignore the provisions of law and to embark upon an enquiry without the regulating framework of the statute and to decide an issue of tax evasion according to the Courts personal ideas of right and wrong.
7. In view of my findings on the two issues, it is not necessary to consider the other points raised by the parties which are accordingly left open.
8. For the reasons aforesaid, the writ application is allowed. The impugned order under s. 281 and notice under s. 226(3) are quashed. There will be no order as to costs.