Petitioner is before this Court claiming a certificate of credit for the amounts allegedly withdrawn from his account and issued in the form of Demand Draft to the Assistant Commissioner of Income Tax, Central Circle-II, Ernakulam, which amount is not seen credited to the income tax dues of the petitioner. Admittedly, there was a search conducted on the premises of the petitioner at that point of time and the assessment for the years 1983-84 and 1984-85 completed. Being a search case, the proceedings were centralised and the 3rd respondent was conferred with the authority to complete the assessment. 2. The assessment pursuant to the search was completed and going by the records produced before this Court, an amount of Rs.94,190/- was due and payable by the petitioner. The recovery of the amounts seems to have been proceeded with by the Assistant Commissioner of Income Tax, Central Circle-II, Ernakulam that too by the issuance of garnishee order to the petitioner's bankers being the 5th respondent herein. Incidentally, at that point of time, petitioner's bankers were the Nedungadi Bank Ltd, a scheduled bank which was later taken over by the 5th respondent herein. The demand draft for the said amount was drawn up by the Bankers and forwarded to the 3rd respondent herein. So much is evident from Exts.P8 and P9 being respectively the communications issued to the petitioner evidencing the same as also the copy of the covering letter by which the demand draft was forwarded to the 3rd respondent. Hence, the amount was withdrawn from the petitioner's account.
3. The petitioner's contentions are further supported by Ext.P1, wherein the Assessing Officer of the petitioner, being the 4th respondent, has written to the Assistant Commissioner of Income Tax regarding the verification of the income tax records having revealed, an amount of Rs.94,190/- having been recovered through the assessee's bankers. The Assessing Officer by Ext.P1 requested the 3rd respondent to intimate the details of the collection of the above sum to wipe off the arrear pending in the above case. Petitioner is aggrieved insofar as the dues as against the tax determined on the search conducted and assessment completed for the years 1983-84 and 1984-85, is still pending as dues before the petitioner's Assessing Officer.
4. The learned Standing Counsel, Government of India (Taxes) on the basis of the counter affidavit would contend that the respondents are unable to wipe off the arrears for the collection having not materialized. The 5th respondent Bank however would contend that having taken over the Nedungadi Bank Ltd., in the year 2003, the branch which had issued the Demand Draft has been closed down and the records of the earlier years pertaining to 1988 is also said to be unavailable. Definitely, none can dispute that an amount of Rs.94,190/- was debited from the account of the petitioner pursuant to an attachment made by the Income Tax authorities. A Demand Draft was also issued by the Bankers of the petitioner for the said amount to the 3rd respondent. The receipt of the Demand Draft by the Department is also revealed from the records, since, the Assessing Officer himself, after verification, finds the receipt of the same. What is in a flux is the collection of the said Demand Draft which is the duty of the Department and not of the Bank or of the petitioner.
5. In such circumstances, it is declared that the petitioner's dues, against which attachment was made as per letter No.R 745 dated 10.11.1988 and against which a Demand Draft dated 29.12.1988 was issued by the Bankers of the petitioner for Rs.94,190.10, shall be treated as settled and duly paid. No proceedings shall lie against the petitioner for recovery of the aforesaid amount. Any further amount due with respect to any other years or any other assessment is not covered by the directions issued herein.
The writ petition stands allowed with the above directions.
Sd/-
K.VINOD CHANDRAN, Judge Mrcs