Somath Iyer, J.
(1) In Shorapur in the District of Gulbarga Naik. In assessment proceedings under the Hyderabad Agricultural Income-tax Act, 1950 (Act No. XIII of 1950) which will be referred to as the Act, a sum of Rs.1,275-7-0 was the tax determined to be payable by him in respect of the assessment year 1358 Fasli, and, a sum of Rs. 1,367-3-0 for the assessment year 1359 Fasli.
(2) But Raja Krishtappa Naik died before any part of this tax was recovered from him. On July 5, 1955, the Agricultural Income-tax officer forwarded to the taluqdar a certificate under Section 34(3) of the Act specifying the amount of arrears due from Raja Krishtappa Naik. On July 7, 1957 the concerned Tashildar sent a notice to Krishtappa Naik's son Raja Pid Naik, demanding the payment of the arrears.
(3) This Writ petition was in that situation presented by Raja Pid Naik for a writ of prohibition restraining the Agricultural Income-tax Officer and the Tashildar from continuing the recovery proceedings.
(4) When this petition was heard by a Bench of two Judges it was contended that arrears of tax could be recovered under Section 34(3) of the Act only from an assesses in default, and, that the petitioner was not one. It was argued that the assesses in default was Raja Krishtappa Naik and not the petitioner.
(5) On the question whether the petitioner was an assesses in default, there was a difference of opinion between the two learned Judges who composed the bench, and, that Bench referred to a Full Bench the question of law which reads:
'Whether on the facts and circumstances of this case, the petitioner can be said to be an 'assesses in default' within the meaning of that expression found it Section 34(3) of the Hyderabad Agricultural Income-tax Act, 1950 (Act 13 of 1950)?'
(6) Now it becomes necessary to refer to the relevant statutory provisions, and they are Section 2(3), 22(1) 23, 33 and 34(3) of the Act. When Raja Krishtappa Naik died before he paid the tax, his legal representatives became liable under section 22(1) of the Act to pay it out of the estate of Raja Krishtappa Naik. Under Section 23 of the Act, when the tax becomes due in consequence of an order passed under the Act, the Agricultural Income-tax Officer is under a duty to serve on the assesses a notice of demand in the prescribed form, specifying the sum so payable. Section 33 provides that the assesses who fails to pay the tax so demanded within thirty days from the date of service of the notice shall be deemed to be in default.
Section 34(3) to which we should now refer reads:-
'34.....Mode and time of recovery.
(3) When an assesses is in default, the Agricultural Income-tax Officer may forward to the Taluqdar a certificate under his signature specifying the amount of arrears due from the assesses, and the Taluqdar, on receipt of such certificate shall proceed to recover from such assesses the amount specified herein as a public demand payable to the Taluqdar. ** ** ** ** **'
(7) It is plain that the Agricultural Income-tax officer could forward a certificate under section 34(3) only when an assesses is in default. It is equally clear from the words 'such assesses' occurring in it that the Taluqdar could recover the arrears only from that defaulting assesses, and that the Income-tax Officer's certificate is the source of his power to do so.
(8) So, it is, that the question arises whether the petitioner is an assesses in default. The defaulting assesses to whom Section 34(3) refers, is, the assesses who shall be deemed under Section 33 to be in default. And he who could be so deemed to be in default is the assesses who does not, after service of a notice of demand under Section 23, pay the tax within the time allowed.
(9) It is common ground that the only notice of demand which was served under section 23 of the Act was that served on Raja Krishtappa Naik. Mr.Advocate General appearing for the respondents did not controvert the truth of the petitioner's allegation that no notice of demand was served on the petitioner at any stage.
(10) Now, the liability of the petitioner to pay the arrears of tax payable by his father which is limited to the extent to the father's estate arises out of Section 22(1) of the Act which reads:-
'22. Tax of deceased person payable by representative.-(1) Where a person dies, his executor, administrator or other legal representative shall be liable to pay out of the estate of the deceased person to the extent to which the estate is capable of meeting the charge the agricultural income-tax assessed as payable by such person or any Agricultural Income-tax which would have been payable by him under this Act if he had not died. ** ** ** ** **'
(11) This statutory liability takes the petitioner into the definition of an assesses contained in Section 2(e) of the Act and makes him one. That definition is:
'2. In this Act, unless there is any thing repugnant in the subject or context- Definitions. ** ** **(e) 'Assesses' means a person by whom Agricultural Income-tax is payable.** ** ** ** **
(12) The language of Section 22(1) of the Hyderabad Agricultural Income-tax is similar to that of Section 24-B of the Indian Income-tax Act 1922. While an assesses as defined by the Hyderabad Act means a person by whom agricultural income-tax is payable, as assesses under the Indian Income-tax Act, 1922, means a person by whom income-tax or any other sum of money is payable under that Act. In Addl. Income Tax Officer Circle I. Salem v. E. Alfred, : [1962]44ITR442(SC) , the Supreme Court made the elucidation that the definition of an assesses in Section 2(2) of the Indian Income-tax Act is sufficient to include a legal representative who is liable to pay the tax out of the assets of the deceased under Section 24-B(1) of the Indian Income-tax Act.
(13) Section 22(1) of the Hyderabad Act which imposed a similar liability on the petitioner, likewise made him an assesses. The tax due from his father became due from him and that tax was what became due in consequence of an assessment order made under the Act, within the meaning of Section 23. But that tax became payable by the petitioner only on his father's death and, so, the notice of demand served on the father did not dispense with its service on the son again. On the father's death, the petitioner became only an assesses, and would not become an assesses in default until the tax is again demanded under section 23, and is not paid within the time allowed by section 33. It is only then that the transformation of the petitioner from an assesses into an assesses deemed to be in default can happen under section 33.
(14) The observation of the Supreme Court that section 24-B(1) of the Indian Income-tax Act 1922 contains no provision for notices in respect of matters such as collection and the like, does not mean that the legal representative is excluded from the machinery provisions for collection. If so excluded, there would only be a liability without an apparatus for its enforcement both under that Act and under the Hyderabad Act.
(15) In the case before us, the notice of demand under Section 23 was served only on the father and not on the petitioner after the father's death. Although the certificate forwarded under section 34(3) is not before us, it is clear from the notice sent by the Thasildar to the petitioner that that certificate named the father as the assesses in default. That notice in which there is a misdescription of the Agricultural Income-tax Officer, reads:
'To
Sri Raja Pid Naik,
Legal heir of Raja Krishtappa Naik,
r/o. Shoorapur.
Sub: Recovery of Agricultural Income-tax arrears.
Sir,
Notice is hereby given to you that Sales Tax Officer, Yadgir has informed that the following dues of Agricultural Income-tax are recoverable from Raja Krishtappa Naik.
1.1358 F Rs. 1,275-7-02.1359 F Rs. 1,367-3-0Total : 2,642-10-0 You are therefore requested to kindly credit the dues within a week as a legal heir to the deceased.'
(16 & 17) The certificate so prepared exhausted itself when the father died, and so, the power for recovery of the arrears, lowing from it, also perished. In that situation, the recovery of the tax from the petitioner under section 34(3) in enforcement of the liability springing from Section 22(1), was not possible until he also became an assesses in default by disobedience to the notice of demand to which Section 33 refers.
(18) Section 22(1) transmits the liability of the deceased assesses and not his default. So, the character o an assesses in default which had fastened itself on the father did not descend upon the son. There can be a default only when there is a duty to pay, and so, the father's fault was not the son's when the tax had not yet become payable by the son.
(19) We cannot import into proceedings for the recovery of Agricultural Income-tax in respect of which section 34(3), is, in a case like the one before us, a complete and exhaustive provision, the machinery of the Code of Civil Procedure for execution of decrees. A certificate forwarded under Section 34(3) authorises recovery of arrears only from the assesses in default named in that certificate, and, when that assesses dies, the efficacy of the certificate comes to an end and the recovery proceedings cannot continue.
(20) The power of the taluqdar under Section 34(3) which is so limited by the certificate, does not extend to recovery from the legal representative of the deceased, until another certificate properly prepared names him as the assesses in default, and, for that purpose, the Income-tax Officer has to find the legal representative and make a demand,
(21) The proviso to Section 34(4) which confers on the taluqdar the powers exercisable by a Civil Court in execution proceedings, is not a proviso to sub-section (3) of that section. Even if it is, those powers could be exercised for the recovery which is authorised. And the recovery so authorised is the recovery from the named assesses in default and from no other. Sub-sections (2) and (3) of Section 22 under which an assessment may be made or continued against a legal representative as if he was the assesses, are inapposite to recovery proceedings expressly regulated by Section 34 (3).
(22) Our decision on the question of law referred to us, therefore, is that the petitioner was not an assesses in default within the meaning of that expression found in section 34(3) of the Hyderabad Agricultural Income-tax Act, 1950 (Act 13 of 1950)
After the decision expressed by the Full Bench the Division Bench (consisting of Somnath Iyer and Kalagate JJ.) delivered the following Judgment on 6-11-1967.
Somnath Iyer, J.
(23) Since the Full bench has expressed the opinion that the petitioner was not an assesses in default we allow this writ petition and quash the impugned proceedings.
(24) The petitioner will be entitled to his costs. Advocate's fee Rupees One Hundred (Rs. 100/-).
(25) Petition allowed