P L D 1969 Karachi 267 (PLP)

(a) Income‑tax Act (XI of 1922), S. 46(2) proviso, (5‑A) Recovery of arrears‑Power to invoke provision of subsection (5‑A) vests exclusively in Income‑tax Officer‑Collector cannot proceed to recover arrears from deposit or property ostensibly in name of a person other than "assessee". Neither under subsection (2) nor under the proviso to that subsection, the Collector has any power whatsoever to invoke the provision of subsection (5‑A) in that this power vests exclusively in the Income‑tax Officer and the only power conferred on the Collector is to effect recovery of the arrears of the income‑tax dues as a civil Court from the property admittedly belonging to the "assessee" and the Collector cannot proceed to recover the arrears from the deposit or property which are ostensibly in the name of a person other than the assessee. (b) Income‑tax Act (XI of 1922), S. 46 (5‑A)‑Powers of Income‑tax Officer under S. 46(5‑A) ‑ Restricted to cases where person to whom notice issued does not dispute his holding deposit or dues on behalf of assessee. (c) Income‑tax Act (XI of 1922), S. 46(2), (5‑A)‑Recovery of arrears‑Attachment of property or deposit held by any person on behalf of assessee‑‑Show‑cause notice, held, a pre‑requisite of valid attachment. (d) Interpretation of statutes ‑Natural justice‑Rules of‑To be read as part and parcel of every statute unless specific provision in particular statute to contrary. The Chief Commissioner, Karachi v. Mrs. Dine Sohrab Katrak P L D 1959 S C (Pak.) 45 ;Messrs Faridsons Ltd., Karachi etc. v. Government of Pakistan etc. P L D 1961 S C 537 ; Abdul Latif v. Government of West Pakistan P L D 1962 S C 384 ; Saiyyed Abul A'la Maudoodi etc. v. The Government of Pakistan and another P L D 1964 S C 673 ant Commissioner of Income‑tax, East Pakistan v. Fazlur Rahman P L D 1964 S C 410 ref. (e) Income‑tax Act (XI of 1922), S. 46‑Proceedings under Act Judicial proceedings Attachment of money standing in name of ostensible depositor other than assessee‑Absence of show‑cause notice‑Renders attachment without lawful authority. Abdul Latif v. Government of West Pakistan P L D 1962 S C 384 and Commissioner of Income‑tax v. Tribune Trust, Lahore P L D 1947 P C 247 ref. JUDGMENT FAIZULLAH KHAN, J.‑In this writ petition Messrs Sheikh Diwan Muhammad Mushtaq Ahmad, a partnership firm, through its partner Diwan Mushtaq pray "(a) That this Hon'ble Court be pleased to declare that the recovery of the amount from the petitioners in conse quence of the orders passed by respondents Nos. 1 to 4 as per annexures to this petition is unlawful and without any legal effect. (b) That this Hon'ble Court may further be pleased to declare that the petitioners are not liable to pay the tax dues which are the liability of the association with which the petitioners have no connection or concern. (c) That this Hon'ble Court be pleased to pass any other order appropriate under the circumstances of this case." The writ petition raises two important questions of law, which involve the interpretation of section 46, in particular subsection (2) and subsection (5‑A) of the Income‑tax Act, 1922. The questions raised may be propounded thus "(1) Whether the Collector to whom the Income‑tax Officer had furnished certificate under subsection (2) of sec tion 46; has any power to press into service the provision of subsection (5‑A) and 'require any person from whom money is due or may become due to the assessee or any person who holds or may subsequently hold money for or on account of the assessee to pay to the Income‑tax officer, either forthwith, or forthwith upon the money be coming due or coming into the possession of the person who holds or may hold it as aforesaid, or at or within the time specified in the notice . . . .' (2) Whether on the true interpretation of section 46, in particular subsections (2) and (5‑A), the Collector or for the matter of that, the Income‑tax Officer's orders attaching the money deposited in the bank in the name of the person other than the assessee are rendered without lawful authority in the absence of any notice served on the person in whose name the deposit stands to show cause why the deposit should not be treated to be on behalf of the assessee. "

3. The material facts, so far as they are not in dispute are as follows :‑ The petitioner is a partnership firm working in the name of Messrs Sh. Diwan Muhammad Mushtaq Ahmad. The Karachi Ration Retailers Association (hereinafter to be referred to as the Association) was formed in 1944, according to the version of the respondent, and in 1949, according to the version of the petitioner comprising of four office‑bearers, namely (1) Mr. Shah Muhammad as its President, (2) Muniruddin as the General Secretary, (3) Mr. Abdul Ghafoor as Cashier and (4) Mr. Sher Khan as Distri bution Secretary. A sum of Rs. one lakh was advanced as a loan to the said Association by the petitioner on 17‑5‑49 and with a view to securing the re‑payment of the loan, the Associa tion accepted the condition that the Bank account of the Association shall be operated under the joint signatures of Mr. Sher Khan, the Distribution Secretary and Sheikh Diwan Mushtaq, son of Diwan Ahmad, a partner of the petitioner. On 9‑9‑49 the principal amount of the loan and the interest amount ing to Rs. 24,426 was paid to the petitioner in the two assessments of the petitioner's firm for the assessment years 1950‑51 and 1951‑52. 7 he amount of Rs. 24,426 was treated by the Income‑tax Officer "not as share income" but "as interest", as disclosed in the assessment order Annexure 'A'.

4. The Income‑tax Officer, `F' Division, Karachi issued notice under section 34 of the Income‑tax Act in respect of assessment years 1950‑51 and 1951‑52, but the petitioner returned the same saying that he was not a member of the Karachi Ration Cloth Retailers Association, nor did he own any ration shop and, therefore, was not the proper person on whom the notices were to be served in respect of the Association. Respondent No. 3 thereafter issued notices to the members of the defunct Association, who filed a return in respect of the assessment year 1950‑

51. The Association was assessed on the net taxable income of Rs. 45,000 as indicated in the assessment order dated 30‑3‑55 (copy Annexure B). The Association was discontinued somewhere in the end of 1954 or in the beginning of 1955 when an order "decontrolling the distri bution of the cloth" was promulgated. As a result of the said assessment the liability of the Association was fixed at Rs. 13,691 out of which a sum of Rs. 3,832‑8‑2 was recovered from the Association's account lying in the Habib Bank Limited, North Napier Road, Karachi, leaving the recoverable balance of Rs. 10,052‑7‑

10. Respondent No. 3 in June 1958 issued a distress warrant against the petitioner under the relief that "liability of the Association was the liability of the petitioners' partners." The petitioner did not make any payment, inasmuch as he was neither member of the Associa tion nor had any money on their behalf. Thereafter the recovery proceedings were entrusted by the Income‑tax Authorities to the City Deputy Collector, Karachi.

5. The City Mukhtiarkar, Karachi by his order dated 12‑4‑60 (copy Annexure D) attached a sum of Rs. 10,05?‑7‑10 belonging to the petitioner in the Habib Bank Ltd., Napier Road, Karachi, as income‑tax dues "recoverable as arrears of Income‑tax against Messrs Karachi Ration Cloth Retailers Association." The Bank complied with the aforesaid order and the amount was sent to the City Deputy Collector, who in turn paid the same to the Income‑tax Department.

6. The petitioner preferred an appeal against the attach ment order of the City Muktiarkar before the City Deputy Collector, Karachi and it is interesting to note that the same Mukhtiarkar acting as a City Deputy Collector himself reject ed the appeal of the petitioner on the assumption that the petitioner was member of the defunct Association (Annexure E is the copy of the said order). The petitioner also simul taneously moved an application to the Inspecting Assistant Commissioner of Income‑tax against the order of the Income tax Officer, but the application proved infructuous, having been rejected vide letter dated 5/6th May 1960 (copy Annexure F). The order reads thus "There is evidence on record that you were operating oar the Bank account of the said association and if during the certificate proceedings, the Recovery Officer has satisfied himself that there were some funds of the association with you on that account has attached your Bank balance, no interference from the undersigned would seem to be called for. The legality or otherwise of the assessment was not even challenged on appeal which was dismissed on 18‑8‑1958. Consequently no question of referring the case to the Com missioner of Income‑tax arises as desired in the concluding para of your letter cited above." The petitioner on 28‑5‑60 in vain sought redress front the Commissioner Income‑tax, South Zone, Karachi, in that the Commissioner by his order dated 20‑6‑60 (Annexure G) refused to interfere in the matter saying that if he thought that the recovery proceedings initiated by the Collector were not warranted "You may please approach him directly. If you hold some funds of the Association, your bank balance is clearly liable to attachment to the extent of funds held." The petitioner then approached the Central Board of Revenue, which is the highest authority under the Income‑tax Act for redress, but the Central Board of Revenue refused to intervene in the matter saying that "the facts of the case have been carefully considered and the Board regrets its in ability to interfere in the matter."

7. It will be convenient here to reproduce the grounds on which the petitioner challenges the impugned order to be without lawful authority. "(a) That the respondent No. 3 has committed an error apparent on the face of the record by wrongly applying section 44 of the Income‑tax Act. Admittedly the petitioner being neither the share‑holders nor the member of the association were not liable to pay the tax dues. The action of the L.-T.O. is therefore illegal and against the provision of the Income‑tax Act, especially when no notice of demand under section 29 of Income‑tax Act was ever served on the petitioner: (b) That the income‑tax authorities knew fully well that the Association was dissolved and the amount in respect of the assessment year, i.e. 1951‑52 could lot be recovered because the Association was untraceable. In that case it was absolutely contrary to the law and facts that the tax dues of the previous year should have been made the liability of the petitioners. (c) That under section 46 (5‑A) of the Income‑tax Act the attachment of the tax dues could be ordered only when a person is holding the funds in his possession belonging to the assessee. In this case admittedly the petitioner did not possess any funds belonging to the Association and therefore the recovery of the amount in dispute was abso lutely illegal. (d) That respondent No. 4, the City Mukhtiarkar has acted illegally by attaching the amount belonging to the petitioner whereas it was the association who was the defaulter. The respondent No. 4 has failed to distinguish between the petitioners and the Karachi Ration Cloth Retailers Associa tion as such his order is wrong and illegal. The petitioner could under no circumstances be treated as a defaulter as no notice under section 29 of the Income‑tax Act was ever served on him. (e) That City Mukhtiarkar has acted without jurisdiction in deciding the appeal filed by the petitioners against his own order, as such his order dated 21‑3‑60 is illegal and without jurisdiction. (f) That the order of the learned Inspecting Assis tant Commissioner is absolutely wrong inasmuch as he has failed to appreciate that the petitioners were not the persons to have filed an appeal against the assessment order passed against the Association. The petitioners were only concerned with the wrong recovery being made from them. Under these circumstances the Inspecting Assistant Commis sioner should have considered the matter separately in respect of the petitioners and should not have treated the matter as being represented by the petitioners on behalf of the Association. (g) That the order of the learned Commissioner suffers from an illegality inasmuch as he has failed to apply his mind and has misunderstood the petitioners' request. It was at the request of the Income‑tax Authorities that the City Mukhtiarkar had started recovery proceedings against the petitioners It was therefore the Income‑tax Department who were the proper authorities to be approached in the matter of stop ping the recovery by the Mukhtiarkar. The Commissioner of Income‑tax has rendered his order arbitrary and capri cious, and therefore without any legal effect. (h) That the order of the Central Board of Revenue declining to interfere is bad inasmuch as no reasons have been given by the Board. It seems that the Central Board of Revenue have not given any thought to the merits of the petitioners' case and have sent a stereotype reply to the effect that they would not like to interfere in the petitioners' case. (i) That the proceedings on the whole for recovering the amount from the petitioners are illegal and in violation of the Income‑tax Act and therefore they are liable to be declared as unlawful."

8. The Commissioner of Income‑tax in the parawise comments, which were sent along with letter dated 12‑10‑63, admitted the correctness of paras. 1 to 10 and 13 and

14. As regards paras. 11 and 12, the following plea was raised :‑ "Yes. Recovery proceedings were started against Sh. Diwan Muhammad Mushtaq Ahmad, Karachi, because this gentleman was found to have been one of the partners who operated the account of the Association in Habib Bank Limited. He was also holding some money of Messrs Karachi Ration Cloth Retailer Association. The recovery officer during course of proceedings satisfied himself that there were some funds of the Association with Sh. Diwan Muhammad Mushtaq Ahmad, and on that account he attached the letters bank balance." In reply to para. 15, 'the action taken by the authorities in recovering the amount was defended to be legal in view of the provisions of sections 44 and 46 (5‑A) of the Act.

9. It is indeed surprising that in the comments furnished by an officer of the status of the Commissioner there should occur wholly inconsistent statement of facts. In reply to paras. 11 and 12 of the writ petition, among other things, it was stated the "recovery proceedings were started against Sh. Diwan Muhammad Mushtaq Ahmad, Karachi, because this gentleman was found to have been one of the partners who operated the account of the Association in Habib Bank Limited." In reply to ground `A', it was stated that "the peti tioner though not a share‑holder or member of the Associa tion was however connected with the Association and was holding funds of the Association. The recovery officer satisfied himself before starting action for enforcement of recovery.

10. Mr. Iqbal Naim Pasha, learned counsel for the petitioner, vehemently argued that the order of the City Mukhtiarkar, dated 12‑4‑60, purporting to act under section 154 of the Land Revenue Act was without lawful authority, in that he had no powers whatsoever to act under subsection (5‑A) of section 46 and that it was only the Income‑tax Officer, who could resort to that provision in two contingencies alone (I) where admittedly any money is due from the person to whoa, notice is issued, or may become due to the assessee and (2) where any person either holds or may subsequently hold money for or on account of the assessee. To put it differently, the provision of subsection (5‑A) could be record only where the person is either admittedly creditor or is about to become a creditor on behalf of the assessee or else the person either holds admittedly the money on behalf of the assessee or about to hold the money on his behalf.

11. Mr. S. A. Nusrat, who appeared on behalf of the respondents (1 to 3), other than the City Mukhtiarkar Once, Karachi, in the beginning half‑heartedly argued that on the facts and circumstances of the instant case the Collector had powers to attach the deposit which was in the name of the petitioner, but when he was confronted with the question as to whether the Collector or for the matter of that the Income tax Officer could have recourse to subsection (5‑A) without issuing a show‑cause notice to the person in whose name the money was deposited, was constrained to concede that the order would be rendered without lawful authority in the absence of a show‑cause notice which in the instant case has not been issued. He, however, attempted to argue that the petitioner ought to have exhausted all the remedies available to him by way of further appeal or revision to the Commissioner and the Board of Revenue. (On the revenue side) against the impugned order of the Deputy Collector.

12. The writ petition can be disposed of in favour of the petitioner on the concession made by Mr. S. A. Nusrat that the impugned order of the Collector was rendered without lawful authority for violation of the principle oh natural justice in not affording an opportunity to the peti tioner to prove that the amount deposited in his name was not at all the money of the Association, but in view of the great importance of the questions raised above, t proceed to answer the questions on merits. Since the decision of the question hinges op the true interpretation of section 46 (2) and subsection (5‑A), it will be convenient to read those sections. "46 (2). The Income‑tax Officer may forward to the Collector of the District in which the office of the Income -tax Officer is situated or the District in which the assessee resides, or owns property or carries on business or pro fession, a certificate under his signature specifying the amount of arrears due from an assessee, 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)* * * * * * * * * * * * (4)* * * * * * * * * * * * (5)* * * * * * * * * * * * (5‑A) The Income‑tax Officer may at any time, or from time to time, by notice in writing (a copy of which shall be forwarded to the assessee at his last address known to the Income‑tax Officer require any person from whom money is due or may become due to the assessee or any person who holds or may subsequently hold money for or on account of the assessee to pay to the Income‑tax Officer, either forthwith, or forthwith upon the money becoming due or coming into the possession of the person who holds or may hold it as aforesaid, or at or within the time specified in the notice (not being before the money becomes due or is held) so much of the money as is sufficient to pay the amount due by the tax‑payer in respect of arrears of income‑tax and penalty or the whole of the money when it is equal to or less than that amount. It will be manifest on reading the language of subsection (2) that the Collector can initiate proceedings on receipt of the certificate issued by the Income‑tax Officer, but the powers of the Collector are restricted to recover from the "assessee" and "assessee" alone the amount specified in the certificate as if it were an arrear of land revenue. The words "shall proceed to recover from such assessee" are significant, in that the Proviso does not at all empower the Collector to recover any amount which he thinks or believes to be ‑ in the hand of a person other than the assessee on the ground that the money belongs to the assessee as contemplated by subsection (5‑A).

13. Coming to subsection (5‑A), it will be noticed that the subsection opens with the words "the Income‑tax Officer may at any time . . . ." It will be plain from the language of ,the subsection that no other authority in Income‑tax Department much less the Collector is empowered to have recourse to this provision. I need not labour the point,' suffice it to say that since Collector does not at all figure in subsection (5‑A), on this .short ground the impugned order of the Collector dated 12‑4‑60 requiring the Habib Bank to pay the amount is without lawful authority. I am aware of the ‑Proviso to subsection (2) under which the Collector is empowered to exercise all the powers which the executing Court has for the purpose of the recovery of an amount due under a decree." The question then arises is whether the executing Court have at all any powers which are conferred on the Income‑tax Officer under subsection (5‑A). The short answer to this question is in the negative, in that there is no such provision in Civil Procedure Code.

14. For all the foregoing reasons, my answer to question No. 1 is that neither under subsection (2) nor under the Proviso to that subsection, the Collector has any power whatsoever invoke the provision, of subsection. (5‑A) in that this power vests exclusively in' the' Income‑tax Officer and the only power conferred on the Collector is to A effect recovery of the arrears of the income‑tax ‑dues as a civil Court from the property admittedly belonging to the "assessee" and the Collector cannot proceed to recover the arrears from the deposit or property which are ostensibly in the name of a person other than the assessee. "Where a person to whom a notice under this subsection is sent objects to it on the ground that the sum demanded or any part thereof is not due to the assessee or that he does not hold any money for or on account of the assessee then, nothing contained in this section shall be deemed to require such person to pay any such sum or part thereof, as the case may be, to the Income‑tax Officer." It is indeed inexplicable that the Legislature should have thought it proper that the Income‑tax Officer invoking the provision of subsection (5‑A) should issue a notice in writing (copy of which shall be forwarded to the assessee at his last address known to the Income‑tax Officer), requiring a person "from whom money is due or may become due to the assessee or any person who holds or may subsequently hold money for or on account of the assessee to pay to the Income‑tax Officer . . . . ," but strangely enough it should have failed to require that a similar notice should be issued to the person in whose name the ostensible deposit is recorded, requiring him to show cause why the deposit or account should not be treated to be held on behalf or on account of the assessee. It will be appreciated that a notice to the assessee is not at all indicated when the deposit is not in his name and his liability for tax is being met out by a person who do not hold the money on his behalf or on his account. Similarly a person who holds the deposit on behalf or on account of ostensible depositor is also not likely to suffer any loss, in particular when the person making any payment in compliance with a notice under subsection (5‑A) "shall be deemed to have made the payment under the authority of the assessee and the receipt of the Income‑tax Officer shall constitute a good and sufficient discharge of the liability of such person . ." The real person who is bound to suffer in the absence of a show‑cause notice is the party in whose name the property or the deposit or account is shown and therefore the show‑cause notice is a prerequisite of valid attachment, in particular when it is noticed that order of attachment is not an appeal able order.

16. This brings ate to the second question, which need not detain me long, in that it has now been irrevocably held by several decisions of the Supreme Court that the rules of natural justice are to be read as part and parcel of every statute unless and until there is a specific provision in a particular statute to the contrary. Reference may be made to the following decisions of the Supreme Court :‑ (1) The Chief Commissioner Karachi v. Mrs. Dina Sohrab Katrak P L D 1959 S C (Pak.) 45. (2) Messrs Faridsons Ltd., Karachi, etc, v, Government of Pakistan etc, P L P 1961 S C 537, (3) Abdul Latif v. Government of West Pakistan P L D 1962 S C 384. (4) Saiyyed Abul A'la Maudoodi etc. v. The Government of Pakistan and another P L D 1964 S C 673. (5) Commissioner of Income‑tax, East Pakistan v. Fazlur Rehman P L D 1964 S C

410. In the last‑mentioned case the Supreme Court was called upon to decide the question whether an assessee who had instead of filing appeal against the order of assessment of Income- tax Officer to the appellate Assistant Commissioner or the Appellate Tribunal, as the case may be, having chosen to seek the alternative relief by way of filing a revision petition under section 33‑A to the Commissioner had a right of hearing as envisaged by the rules of natural justice. To resolve this question, the Supreme Court had addressed itself to the subsidiary question whether the proceedings before the Commis sioner under section 33‑A were administrative. Kaikaus, J., speaking for the Supreme Court, contrary to the view expressed by the Privy Council in Commissioner of Income‑tax v. Tribune Trust, Lahore (PLD1947 P C 247) held that section 37 of the Income‑tax Act confers on the Commissioner of Income‑tax for purposes of Chapter IV (section 13‑A occurs in Chapter IV) the powers of the Civil Court, and that "any proceedings before a Com missioner under this Chapter shall be a judicial proceeding". His Lordship further observed to "Section 37 appears not to have been brought to the notice of the High Court in the present case. In view of the wording of this section it is not necessary to refer to cases Cited at the bar by the appellant which do not refer to this section. Those cases are generally based on an observation made by the Privy Council in Commissioner of Income‑tax v. Tribune Trust, Lahore." His Lordship then addressed himself to the question whether right of hearing was available to the assessee under section 33‑A and expressed himself thus: "On behalf of the appellant it is urged that even if the order passed under section 33‑A be a judicial order it does not necessarily imply that notice to the respondent of the hearing of the application under section 33‑A was essential. Reliance is placed in this connection on section 31 of the Income‑tax Act which provides for notice of the hearing of the appeal to the appellant. It is‑ urged that the exis tence of a provision for notice in section 31 and its absence in section 33 should lead to the inference that notice of the hearing of the application under section 33‑A to the applicant was not needed. The logical result of the acceptance of this argument should be that notice of hearing should never be necessary unless it is specially provided for because if this argument be valid by com parison of two sections of the statute it should also be valid by comparison of provisions in different statutes on the ground that the Legislature when it intends notice makes an express provision. We do not think the mere absence of a provision as to notice can override the principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing to that party. A reference to provisions in other statutes will show that the existence of a provision of notice as to one proceeding has not been accepted as an argument against the need of notice in the case of a proceeding with respect to which there is no express provision '17 notice. Under the Criminal Procedure Code there is a distinct provision in the case of an appeal for notice of hearing to the appellant, but there is no such provision in the case of a revision petition in the High Court. It cannot be urged, however, that the right of hearing in a revision petition has thereby been excluded. In the Civil Procedure Code similarly there is a provision in Order XLI, rule 22 directing notice of the hearing of appeal to be given to the appellant and there is no such provision with respect to a proceeding under section 115, C. P. C., yet it cannot be said that it is not necessary to hear the parties affected in a proceeding under section 115, C. P. C. The fact that the proceedings are judicial or quasi judicial in nature is sufficient to entitle a party to a hearing in the absence of a specific provision to the contrary. At the same time it should be pointed out that the right to be heard is not confined to proceedings which are judicial in form. As has been held by this Court in The Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak. The decision in Abdul Latif v. Government of West Pakistan is in all fours with the facts of the instant case. In this case the Supreme Court was called upon to decide precisely the question whether a show‑cause notice was a condition precedent for initiating proceedings under Public Accountants' Default Act (XII of 1850), as arrears of land revenue in terms of sections 66 and 69 of the Punjab Land Revenue Act (XVII of 1887). Fazle‑Akbar, J., as his Lordship then was, speaking for the Supreme Court, after exhaustive review of the case‑law on the point and the relevant provisions of the Public Accountants' Default Act, Punjab Land Revenue Act, and Revenue Recovery Act (I of 1890), at page 394, if I may say so with respect, tersely summed up the discussion thus: "In January 1958, without any notice to the appellant the Treasury Officer prepared a statement `showing deficiencies in remittances and shortage in stamps, etc.' The Deput\, Commissioner in issuing the order faithfully followed the information conveyed to him by the Treasury Officer without giving the appellant an opportunity to meet the allegation made against him. The procedure adopted to say the least was against all ‑ principles and cannons of justice and fair play." It follows from the above authorities that the proceeding under the Income‑tax Act are judicial proceedings and, therefore, any order of attachment of money standing in the name of ostensible depositor, who is not an assessee is rendered with out lawful authority in the absence of show‑cause notice. If the Income‑tax authorities wish to make the provisions of subsection (5‑A) really effective, they should approach the Government for necessary amendment in subsection (5‑A), whereunder a notice to third person in whose name the deposit or account or other property is shown is also issued a show cause notice before any coercive measures are initiated against him for recovery of arrears of Income‑tax.

17. In the result, I would accept the petition with costs and declare that the impugned orders as also the recovery of the amount from the petitioner are without lawful authority. QADEERUDDIN AHMAD, J.‑I agree with the conclusion. Petition accepted.