' This is a landlord's second appeal against the order of learned lower Appellate Court whereby the order of eviction of respondent (tenant) on ground of default in payment of rent passed by the learned Rent Controller was reversed.
2. The appellant (landlord) was an assesses of income-tax. An amount of about Rs, 14,000 was stated to be due from him to the Income-tax Department. The Department, acting under subsection (5-A) of section 46 of the Income-tax Act required the tenant to pay the rent to the Department towards discharge of the appellant's (landlord) liability. Admittedly, the respondent did make the payments to the Income-tax Department but, it is stated, the payments were not on monthly basis but in lump sum. Therefore, the learned Rent Controller held that a default in payment of rent in accordance with the terms of tenancy had taken place. He accordingly ordered, his eviction. Learned lower Appellate Court, however, held that the lump sum payments were accepted by the Income-tax Department which was concerned party responsible for realising the rent. They not having objected in this behalf, it would not be treated as a default in the real sense in payment of rent and, in any case, the learned Judge thought that in the circumstances of the case the discretion should be exercised in favour of the tenant.
3. Learned counsel has reiterated the same argument which influenced the learned Rent Controller.
Section 46(5-A) of the Income tax Act reads as follows:- "(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 assesses at his last address known to the Income-tax Officer), require any person from whom money is due or may become due to the assesses 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-tat and penalty or the whole of the money when it is equal to or less than that amount.
' The Income-tax Officer may at any time or from time to time amend or revoke any such notice or extend time for making any payment in pursuance of the notice.
' Any person making any payment in compliance with a notice under this subsection shall be deemed to have made the payment under the authority of the assessee and the receipt of the Mcome-tax Officer shall constitute a good and sufficient discharge of the liability of such person to the assessee to the extent of the amount referred to in the receipt.
' Any person discharging any liability to the assessee after receipt of the notice referred to in this subsection shall be personally liable to the Income-tax Officer to the extent of the liability discharged or to the extent of the liability of the assessee for tax and penalties, whichever is less.
' If the person to whom a notice under this subsection is sent fails to make payment in compliance therewith to the Income-tax Officer the notice issued by the Income-tax Officer shall have the same effect as an attachment by the Collector or Tax Recovery Officer in exercise of his power under the proviso to subsection (2) or, as the case may be, section 46-A and further proceedings may be taken by or before the Collector or Tax Recovery Officer accordingly.
' Explanation 1.-The expression "person", as used in this subsection, includes a Court, tribunal or any other authority.
' Explanation 2.-For the removal of doubts it is hereby declared that the several modes of recovery specified in this section are neither mutually exclusive nor affect in any way any other law for the time being in force relating to the recovery of debts due to Government, and it shall be lawful for the Income-tax Officer, if for any special reasons to be recorded he so thinks fit, to have recourse to any such mode of recovery notwithstanding that the tax due is being recovered from an assessee by any other mode,."
' It is clear from para. 2 of the above-quoted provision that the income-tax Officer can at any time and also from time to time amend or revoke the origin' notice through which the realisation/recovery of the amount starts and can also extend the time for making any payment in pursuance of the initial notice It is also provided in the next paragraph that any person making any payment in compliance with the 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 to the assessee to the extent of the amount referred to in the receipt".
4. The language used in the provision is susceptible of wide inter. Pretation, not hinged and controlled by the stringency of the provisions of the Rent Restriction Ordinance. Firstly, it appears from the notice (uncertified copy of which has been produced by the learned counsel from his brief for my perusal) that the tenant was asked to pay the amount in instalment of Rs, 90 per mensem.
Thus, in the very beginning, a departure was made by the Income-tax Department (in the notice) from the contractual terms of tenancy. Secondly, the Income-tax Department started accepting lump sum amounts of rent from the respondent (tenant) and considered it as sufficient discharge of liability. This even if did not amount to extension of time from time to time in a technical sense, did amount to an acceptance which would constitute estoppel in so far as the Income-tax Department is concerned. They could not have, after this acceptance, proceeded against the tenant under the Income-tax Act and, in fact, they did not so proceed against him. All this having taken place under the provisions of the Income-tax Act, the payment would constitute discharge of liability of the tenant to the assessee (landlord). Thirdly, even if there remains any doubt with regard to the above assumptions, in the circumstances of the case, the discretion should have been exercised in favour of the tenant who did satisfy the Income-tax Department qua their demand as there was no objection from their side. That being so, he should not have been ejected in exercise of discretionary jurisdiction of the Rent Controller.
5. For all the above reasons, I find no justification for interference with the exercise of discretion by the learned lower Appellate Court. Dismissed in limine.