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SARKAR J.-The question in these two appeals is whether certain proceedings for the recovery of tax from the assessee under the Income-tax Act, 1922, were invalid and should be quashed as the assessment order on which they were based had been revised in appeal. The High Court of Mysore held them to be invalid and quashed them. The revenue authorities have now appealed to this Court against that decision.

I think it will be helpful to set out the facts chronologi- cally. The tax sought to be realise a became due under two assessment orders passed by an Income-tax Officer on March 23, 1955, in respect of the years 1953-54 and 1954-55 finding that the assessee's income for the earlier year was Rs. 61,000/-on which a tax of Rs. 19,808-1-0 was due and that for the other year was Rs. 1,21,000/- creating a tax liability of Rs. 66,601-3-0. Notices of demand under s. 29 of the Act were issued in respect of these dues. The assessee tiled appeals to the Appellate Assistant Commissioner against the assessment orders but did not pay the tax as demanded by the notices. On such failure to pay, the Income-tax Officer sometime in September 1955 sent certificates to the Deputy Commissioner, Kolar under s. 46(2) of the Act for recovery of the tax as arrears of land revenue and the latter in the course of the same month attached various properties of the assessee under the Revenue Recovery Act. Thereafter on December 17, 1955, the appeals filed by the assessee which were till then pending were decided by the Appellate Commissioner. He reduced the assessable income of the assessee to Rs. 27,000/- for the year 1953-54 and to Rs. 45,000/- for the year 1954-55 and directed the Income-tax Officer to recompute the tax on the basis of the reduced income and to refund the excess if any collected. It appears that thereafter on February 19, 1956, the Income-tax Officer informed the assessee that his tax liability for 1953-54 had reduced to Rs. 4,215-9-0 Rs. 13,346-8-0 and called upon him to pay these amounts at once into the local treasury. The assessee filed further appeals against the orders of the Appellate Commissioner and asked that the recovery proceedings might be stayed pending decision of these appeals and on that request being rejected, moved the High Court of Mysore by two petitions under Art. 226 of the Constitution for quashing the recovery proceedings as invalid with the result earlier mentioned. We are not concerned with the appeals filed by the assessee from the appellate orders and no further reference to them will be made in this judgment.

HIDAYATULLAH, J.-These appeals by special leave arise from a common order in two writ petitions under Art. 226 of the Constitution passed by the High Court of Mysore on April 16, 1959. The Income-tax Officer, Kolar and the Commissioner of Income-tax, Bangalore are the appellants before us. The assessee Seghu Buchiah Setty, who is the respondent, is a merchant of Srinivaspur, Kolar District. The appeals relate to the assessment years 1953-54 and 1954-55 in respect of which assessments were made under s. 23(4) of the Incometax Act. For the assessment year 1953-54, the assessee's income was estimated to be Rs. 61,000/- and the tax levied was Rs. 19,808-1-0. For the second year, his income was estimated to be Rs. 1,21,000 and the tax levied was Rs. 66,601-3-0. The assessee applied under s. 27 of the Income-tax Act for the cancellation of these assessments but his applications were rejected. It was stated before us that other proceedings were pending in this behalf; but I am not concerned with them except in so far as a preliminary objection based on those and some other proceedings was made before us to which I shall refer presently. After the assessment was made, the Incometax Officer sent notices of demand asking the assessee to pay Rs. 86,409-4-0 as tax, and on default, issued a certificate under s. 46(2) of the Act to the Collector of Kolar District to recover the amount as arrears of land revenue.

I would therefore dismiss these appeals and all the more readily because a fresh notice of demand has issued in this case. If it is disobeyed, the Income-tax Officer would be able to recall the old certificate issued to the Revenue Officer, amend it and bring it in line with the tax now demandable and return it to him for continuing the recovery proceedings.

I would dismiss the appeals but in the circumstances of the case, I would make no order about costs.

SHAH, J.-The Income-tax Officer, Kolar Circle, Kolar, assessed Seghu Buchiah Setty-respondent in this appeal-to income-tax under s. 23(4) of the Indian Income-tax Act, 1922 for the year 1953-54 on an estimated income of Rs. 61,000 and for the year 1954-55 on an estimated income of Rs. 1,21,000 and served notices of demand under s. 29 of the Act for the tax due under the two orders of assessment. On the respondent failing to comply with the notices of demand within the period specified, the Income-tax Officer treated the respondent as in default and sent certificates under s. 46(2) of the Act to the Deputy Commissioner, Kolar, for recovery of the tax determined by the orders of assessment. The Deputy Commissioner attached certain properties belonging to the respondent. In appeals filed by the respondent against the orders of assessment the Appellate Assistant Commissioner reduced the income assessed for the year 1953-54 to Rs. 28,000 and for the year 1954-55 to Rs. 46,000. The Income-tax Officer did not issue fresh notices of demand pursuant to the modification in the orders of assessment made by the Appellate Assistant Commissioner, but by his letter dated February 14, 1956 informed the respondent that he had to pay tax as reduced by the appel- late order. The respondent did not pay the amount of tax demanded, and applied to the High Court of Mysore under Art. 226 of the Constitution for a writ of certiorari quashing the certificates issued by the Income-tax Officer treating him as in default and a writ of prohibition prohibiting the Income-tax Officer from enforcing the certificates under s. 46(2) of the Income-tax Act. The High Court of Mysore relying upon the judgment of the Calcutta High Court in Metropolitan Structural Works Ltd. v. Union of India(1) held that the In- come-tax Officer could not, without issuing fresh notices of demand, after the Appellate Assistant Commissioner of In- come-tax reduced the taxable income, setting out the tax payable by him for the two years in question, treat the respondent as a defaulter and that the proceedings of the Collector based on the certificates issued pursuant to the order of assessment by the Income-tax Officer were illegal. Against the orders passed by the High Court, the Income-tax Officer has appealed to this Court, with special leave. The question which falls to be determined in this appeal is about the legal effect of the reduction of the assessable income by the order of the Appellate Assistant Commissioner on the notices of demand previously issued by the Income-tax Officer. The respondent contends that by the modifications made in the orders of assessment the notices of demand issued by the Income-tax Officer must be deemed cancelled or superseded, and he cannot be regarded as in default, unless fresh notices of demand are issued by the Income-tax Officer specifying the amount payable pursuant to the appellate order. The respondent says that there was at the material time no outstanding demand notice or order specifying the amount payable failure to comply with which may be regarded as constituting a default. The respondent strongly relies upon the observations made by Chakravartti, C. J., in his judgment in Metropolitan Structural Works Ltd's case(1) that where the income assessed by the Income-tax Officer is reduced in appeal, the notice of demand issued by the Income-tax Officer in respect of the income assessed by him will on such reduction cease to be appropriate, such being the meaning of the statute and any interpretation to the contrary is "against reason"' and against the actual necessities of realization".