1. This is an application under Section 53 of the Bengal Public Demands Recovery Act, 1913, against an order of the Development Commissioner, Assam, dated 2nd December 1948, by which he affirmed the order of the Deputy Commissioner who had passed an order in these terms:

“In my opinion, the demand in this case has been created by Section 46(2) of the Income-tax Act wherein it has been distinctly laid down that it has to be recovered as if it were arrear of land revenue. Again S. 94 of the Assam Regulation I[1] of 1886 (6th edn.) is the procedural law which gives clear authority for the demand to be recovered under Chapter 5 of the said Regulation. Even conceding for argument's sake that the demand is recoverable both under the Regulation and the Public Demands Recovery Act, the learned Advocate-General could not show me any notification by which the provision of the Regulation I[1] of 1886, stated above, regarding realization of Government dues of this kind have been repealed. As such, the defaulters are not entitled to the benefits of the Public Demands Recovery Act. So, the procedure followed so far in this case has been quite in order. The prayer is rejected. Take further steps for recovery of demand at once. Dated 4th October 1948.”

2. It appears that in February 1948, the Excess Profits Tax Officer, Dibrugarh, made a provisional assessment in the sum of Rupees 8½ lakhs against a partnership firm called the Surma Valley Foodgrain Syndicate, Silchar, Caohar, and sent to the Collector, Ca char, a written requisition for realisation of the amount. Mr. Fakruddin for the Syndicate contends that the requisition made by the Excess Profits Tax Officer was a requisition in respect of a public demand as mentioned in Sch. I to the Bengal Public Demands Recovery Act, 1913, and that it could be recovered by the Collector only under the provisions of the Public Demands Recovery Act, and not under the Assam Land and Revenue Regulation; as the Collector has not followed the procedure laid down by the Public Demands Recovery Act in the matter of the recovery of the assessment, the proceedings, purporting to be proceedings taken under the Assam Land and Revenue Regulation, were wholly misconceived. It is not disputed by Mr. Fakhruddin for the Syndicate that the action taken by the Excess Profits Tax Officer, Dibrugarh, was one under the provisions of sub-s. (2) of Section 46 of the Income-tax Act, and that by virtue of Section 21 of the Excess Profits Tax Act of 1940, the provisions of Sections 45 to 48 (inclusive) of the Income-tax Act, 1922, have been made applicable with such modifications, if any, as may be prescribed as if the said provisions were provisions of the Excess Profits Tax Act of 1940, and referred to excess profits tax instead of to income-tax, and every officer exercising powers under the said provisions in regard to income-tax may exercise the like powers under the Excess Profits Tax Act in regard to excess profits tax in respect of cases assigned to him under sub-s. (3) of S. 3 as he exercises in relation to income-tax under the said Act. sub-s. (2) of Section 46 of the Income-tax Act, says:

“The Income-tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from an assesses, and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue:

Provided that without prejudice to any other powers of the Collector in this behalf, he shall for the purpose of recovering the said amount have the powers which under the Code of Civil Procedure, 1908, a Civil Court has for the purpose of the recovery of an amount due under a decree.”

3. We wish to emphasise that when action is taken by an Excess Profits Tax Officer under the provisions of sub-s. (2) of S. 46, the certificate referred to in sub-s. (2) is to be forwarded to the Collector, and not to the Certificate Officer, as required by the Public Demands Recovery Act. On a bare perusal of sub-s. (2) of S. 46, Income-tax, 1922, and Section 5 of the Public Demands Recovery Act of 1913, it would appear that the procedure laid down in Section 5 of the Bengal Public Demands Recovery Act, is materially different from the procedure laid down in sub-s. (2) of Section 46 of the Income-tax Act. The expression ‘Certificate-Officer’ is defined in cl. (3) of Section 3 of the Bengal Public Demands Recovery Act, in these terms:

“‘Certificate-Officer’ means a Collector, a Sub-divisional Officer, and any officer appointed by a Collector, with the sanction of the Commissioner, to perform the functions of a Certificate-Officer under this Act.”

4. It is true that under cl. (3) of S. 3, a Certificate. Officer means a Collector, but it does not follow that a Collector exercising statutory powers under the Assam Land and Revenue Regulation is a Certificate-Officer. In the Assam Land and Revenue Regulation, there is no reference to an officer such as a Certificate-Officer. Mr. Fakhruddin's argument is based upon the supposition, which we think has no foundation, that when a certificate is forwarded under sub-section (2) of Section 46 of the Income-tax Act, to a Collector, it must be regarded as having been forwarded to a Certificate-Officer under Section 5 of the Bengal Public Demands Recovery Act. It is to be observed that under Section 5(1) of the Public Demands Recovery Act, the written requisition to a Certificate Officer is to be made in the prescribed form set out at page 123 of the Assam Code of 1939, vol. II. Under sub-s. (2) of Section 46 of the Income-tax Act, there is no prescribed form in which a certificate is to be forwarded to the Collector.

5. It is true that under Sch. I to the Public Demands Recovery Act:

“any money which is declared by any law for the time being in force to be recoverable or realisable as an arrear of revenue or land revenue, or by the process authorised for the recovery of arrears of revenue or of the public revenue or of Government revenue.”

6. Is a public demand. But a demand which by a particular enactment can be regarded as a public demand is not necessarily recoverable or realisable only under the Public Demands Recovery Act. Indeed Section 55 of the Public Demands Recovery Act provides to the contrary. Section 65 says:

“The powers given by this Act shall he deemed to be in addition to, and not in derogation from, any powers conferred by any other Act now in force for the recovery of any due, debt, or demand to which the provisions of this Act are applicable, and, except where expressly so provided, no legal remedy shall be affected by this Act.”

7. Having regard to the provisions of Section 55 of the Public Demands Recovery Act, we think, the action of the Excess Profits Tax Officer, Dibrugarh, under the provisions of sub-s. (2) of Section 46 of the Income-tax Act, forwarding the certificate to the Collector, cannot be questioned. The Collector, on receipt of such a certificate, is competent to act under S. 94 of the Assam Land and Revenue Regulation which lays down that:

“the provisions of Chap. V of the said Regulation shall, so far as may be, apply to the recovery of any sum of money realisable under any enactment for the time being in force as if it were an arrear of land-revenue.”

8. The certificate forwarded to the Collector by the Excess Profits Tax Officer, Dibrugarh, was forwarded for the recovery of a sum of money which was realisable under Section 46 of the Income-tax Act, as an arrear of land-revenue, Mr. Fakhruddin contends that it is not possible to comply with the provisions of chap. V of the Assam Land and Revenue Regulation, which deal mainly with questions arising out of estates temporarily or permanently settled, and pointed out, as an example, the difficulty of resorting to certain coercive processes prescribed by chap. V of the Assam Land and Revenue Regulation in the matter of the recovery of money due from an assessee under the Income-tax or the Excess Profits Tax Act. The answer to the contention is that it is not necessary that all the provisions of chap. V should be capable of being applied in the matter of the recovery sought to be made under the provisions of S. 94 of the Regulation. For instance, S. 91 of the Regulation lays down that

“if an arrear cannot be recovered by any of the foregoing processes, and the defaulter is in possession of any immovable property, other than the estate in respect of which the arrear has accrued, the Deputy Commissioner may proceed against any of that other property situated within his district according to the law for the time being in force for the attachment and sale of immovable property under the decree of a civil Court. (2) If there is no such other property in his district, the Deputy Commissioner may make under his hand a certificate in the prescribed form, of the amount of the arrear remaining unpaid, and may forward the same to the Deputy Commissioner of any other district in which this Regulation is in force, and within the limits of which the defaulter is possessed of any such property, and that Deputy Commissioner shall thereupon proceed to realise the arrear as if it were an arrear accruing in his own district.”

9. The proviso to sub-s. (2) of Section 46 of the Income-tax Act, 1922, that the Collector shall for the purpose of recovering the said amount, have the powers which under the Code of Civil Procedure, 1908, a civil Court has for the purpose of the recovery of an amount due under a decree appears to as to be in conformity with the provisions of S. 91 of the Regulation.

10. In the view we take of the applicability of Ss. 94 and 91 of the Regulation, we think, the application filed before us under Section 53 of the Public Demands Recovery Act, was entirely misconceived. If the proceedings in this matter were properly taken by the Collector under the provisions of the Assam Land and Revenue Regulation, as we think they were, under S. 147, Assam Land and Revenue Regulation, an appeal lay to the Tribunal appointed under Section 296 of the Government of India Act, 1935 (the powers of the Tribunal are now exercised by this Court) from any order, original or appellate, passed by a Deputy Commissioner of a District. No such appeal has been preferred. Indeed, no final order has yet been passed by the Collector who in this Province is officially designated as a Deputy Commissioner. An appeal to the Development Commissioner under the Public Demands Recovery Act against the assumption of jurisdiction by the Collector under the Regulation was clearly incompetent.

11. Mr. Fakhruddin has referred us to the case of Raghubir Singh Chetri v. Tezpur Local Board, A.I.R (26) 1939 Cal. 587 : (I.L.R (1939) 1 Cal. 329). But we do not think the decision in that case has any bearing on the facts before us. It may be true, as Edgley, J., has stated, that S. 94, Assam Land and Revenue Regulation, cannot be interpreted so as to mean that all the sums realisable as land revenue must be recovered under the provisions of chap. 5. But it does not follow that a sum realisable by a Collector in pursuance of a certificate forwarded to him under the provisions of Section 46(2) of the Income-tax Act, cannot be realised under Chap. 5, of the Regulation. Nor do we think the decision of their Lordships of the Privy Council in Doorga Prosad v. Secy. of State, A.I.R (32) 1945 P.C 62 : (ILR 1945 KAR PC 203), has any bearing on the facts of this case. It may be conceded that when a certificate is issued to a Collector under sub-s. (2) of Section 46 of the Income-tax Act, certifying that a sum as tax is due from the assessee on account of income-tax, super-tax and penalty, and requesting the Collector to recover the amount as if it were an arrear of land-revenue, it is a public demand within the meaning of the Bengal Public Demands Recovery Act. In the Privy Council case, the demand was made to the Certificate Officer under the provisions of the Public Demands Recovery Act. In the case before us, the demand is made to the Collector for the recovery of an amount which the Collector is empowered under chap. 5 of the Assam Laud and Revenue Regulation to enforce. In their judgment, their Lordships of the Privy Council stated

“The certificate stated on its face that it was filed in the office of the Certificate Officer of Howrah, and followed the form given in the Appendix to the Act.”

12. The certificate in this case was not a certificate in the prescribed form, as required by Section 5 of the Public Demands Recovery Act. The question as to whether a demand made by an Income-tax Officer or an Excess Profits Tax Officer under the provisions of Section 46(2) of the Income-tax Act read with Section 21 of the Excess Profits Tax Act could be dealt with under the Assam Land and Revenue Regulation, was not before their Lordships for consideration or decision.

13. For the reasons stated above, we think the learned Development Commissioner, to whom, we do not think an appeal lay on the facts of this case, has correctly stated that the Deputy Commissioner had jurisdiction to proceed in the matter of the recovery of this particular amount under the Assam Land and Revenue Regulation.

14. The result is that the application is dismissed with costs, which are fixed at Rs. 50. The order dated 12th January 1949 staying the proceedings before the Collector is hereby vacated.

15. Application dismissed.