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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.

Such notices of the Income-tax Officer are no more than a kind of a garnishee order issued to the person holding money which money is due to an assessee. The Collector of Customs had recovered this money and under the decrees of the Court the Union of India was liable to refund it to the firm. A garnishee order is issued to a debtor not to pay to his own creditor but to some third party who has obtained a final judgment against the 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 S. 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 did. The leading case on the subject is In re Beckitt(1) and learned counsel for the respondents did not controvert the proposition laid down there. It is, however argued on the authority of Bidhoo Beebee v. Keshub Chunder Baboo and Ors., (2) Mahiganj Loan Office, Ltd. v. Behari Lal Chaki,(3) A. P. Bagchi v. Mrs. F. Morgan(4 ) and Thomas Skinder v. Ram Rachpal(5), that the payment which can be adjusted under O. 21, r. 2 is a voluntary payment by the judgment-debtor to the decree holder and that this iS not a case of voluntary payment, at, all. The rulings which have 'been cited do not, in our opinion, apply here. This point was not considered in the High Court and seems to have been thought of here. Order 21, r. 2 merely contemplates payment out of court and says nothing about voluntary payment. A garnishee order can never by its nature (1) [1933] 1. T. R. 1. (2) 9 W. R. 462.

(3) 1. L. R. [1937] Cal. 781. (4) A. 1. R. 1935 All.

513. (5) 1. L. R. 1938 All. 294.

lead to a voluntary payment and it is not to be thought that a garnishee, order does not lead to the adjustment of the decree sufficient for being certified by the Court. Payment by virtue of S. 46(5A), as we have stated before, is in the nature of a garnishee payment and must, therefore, be subject to the same rule.

The rulings themselves do not control the present matter. In 9 W.R. 462 the payment was not under a garnishee order but under the process of the court issued in execution by arrest of the judgment-debtor. Contrasting what had happened in the case with the words of the second rule of 0. 21 (then s. 206 of the Code of 1859) the learned Judges observed that s. 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 I.L.R. [1937] 1 Cal. 781 there was a scheme framed by the depositors of a banking Company for return of their deposits in spite of opposition from decree- holders 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 O. 21, r. 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 of both the decree- holder and the judgment-debtor and not one which is made binding by operation of law. It is to be noticed that that was a payment to which the judgment-debtor had objected although it was binding on him. We see no reason for making a distinction between a voluntary payment out of court and a payment out of court which the law regards as valid. No

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 s. 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 O. 21, r. 2 of the Code of Civil Procedure and we order that it be so certified. The appeals are accordingly allowed with costs here and in the High Court.