JUDGMENT [ENTITY], J.
1. The facts :
2. The petitioner is one of the legal representatives of rate [ENTITY] who was an assessee on the files of the third respondent, the Income-tax Officer. He expired on February 19, 19[SECTION], when the proceedings for assessment for the years 1119, 1120 and 1122 to 1125 (Malayalam Era) under the [ACT] under the [ACT], were pending. Deceased [ENTITY], while alive, had approached the Central Government for settlement of his tax liabilities on mutual agreement. The liabilities for the assessment years 1119 and 1120 (Malayalam Era) were settled as per proceedings of the Ministry of Finance, Government of India by order No. 74(29)11/57 dated September 25, 1957 and, as per that settlement, late Musaliar was liable to pay a sum of Rs. 9,15,458 including penalty. The tax amount for the assessment years 1122 (Malayalam Era) to 1956,-57 was settled, as is seen from the second settlement, at Rs. 31,34,562. Thus, the total tax payable as per the two settlements came to Rs. 40,50,020. So far as the tax liability under the first settlement is concerned, it is the case of the petitioner that the assessee himself had paid it fully. But the petitioner has no such case in regard to the second settlement. According to the Revenue, the outstanding demands as in the year 1968 came to Rs. 50,42,970.34. These demands consisted of the following amounts :
(i) Rs. 31,95,020 balance tax
(ii) Rs. 14,42,020 penalty levied on [ENTITY] before his death.
(iii) Rs. 3,05,930 interest up to December 31, 1965.
3. For realisation of the aforesaid amounts, the Income-tax Officer initiated the proceeding contemplated under [SECTION] of the [ACT]. This proceeding was under challenge before this court in writ petition ([CASE NUMBER]) filed by the legal representatives. The main grounds on which the said proceeding (which is termed as the order of attachment in the judgment disposing of these writ petitions) has been attacked are : (1) that the [ACT], cannot be invoked to recover the arrears of income-tax for the periods shown in the statement, but that these could be recovered only under the provisions of the [ACT] in respect of some of them, and under the [ACT], with regard to the rest; (2) that if the application of the [ACT], for the relevant period was also justified, the provisions of the same being more harsh and oppressive than those of the [ACT] or the 1922 Act, its application to the instant case was discriminatory; (3) that many of the certificates issued to the Tax Recovery Officer, were in the name of the deceased [ENTITY], after his death, and cannot give the foundation for a valid attachment; and (4) that the said proceeding had clubbed together the amounts due under the [ACT], the [ACT] and if the [ACT] be inapplicable for the recovery of any of these amounts, the whole proceedings must fail. The Revenue contested the petitions. The learned single judge who heard the petitions dismissed them. The judgment was under challenge in [CASE NUMBER] (see Isha Beevi v. TRO [1971] 80 ITR 82 (Ker . The Division Bench, while disposing of the appeals, made a declaration and it reads thus (at p. 95 of 80 ITR) :
"In the result, we declare that the claim enforceable under exhibit P-1 attachment will not include the arrears of income-tax specified in the eleven certificates which were issued after the death of the [ENTITY], and modify the order of the learned judge to this extent. Subject to the modification indicated, we dismiss the writ appeals."
4. Exhibit P-l referred to above is the order of attachment. The Tax Recovery Officer passed after receipt of the certificates Nos. 1 to 22 (made mention of in the judgment) within the meaning of [SECTION] of the [ACT]. Of these 22 certificates, certificates Nos. 12 to 22 are the 11 certificates which were found to be unenforceable by the Division Bench. The petitioners took the matter to the Supreme Court by filing appeals which however were dismissed by the Supreme Court (See [PRECEDENT]).
5. While the dispute was pending before the Division Bench, the Income-tax Officer, it is submitted, in exercise of the power vested in him under [SECTION], corrected the certificates and the fact of correction was intimated to the Tax Recovery Officer.
6. Based on the corrected certificates, the Tax Recovery Officer issued exhibit P-7 notice under [SECTION] informing the petitioner that "the 20th day of July, 1976, has been fixed for drawing up the proclamation" in connection with the sale of the properties for realisation of the amounts shown in the schedule attached to the said notice. The petitioner thereupon moved this original petition for the reliefs stated hereunder :
" this Hon'ble Court may be pleased to issue a writ of :
(i) prohibition forbearing the third respondent from recovering any amount in pursuance of the recovery proceedings initiated by the 4th respondent in exhibit P-7 ;
(ii) to call for the records of the case leading to the issue of exhibit P-7 notice for settling a sale proclamation in respect of the properties mentioned in the list attached thereto issued by the respondent and quash the entire proceedings by the issue of a writ of certiorari or any other appropriate writ, order or direction in the nature of a writ of certiorari ;
(iii) mandamus directing the respondent to refund the balance amount already paid after giving credit to the actual tax levied, illegally collected from the petitioner by the respondent, with interest and pending disposal of the writ petition, to grant an order of stay of recovery of the amounts demanded and for which exhibit P-7 notice is issued and pending disposal of the writ petition direct the respondent to lift the attachment and pass such other or further orders as this Hon'ble Court may deem fit and proper."
7. The main grounds on which exhibit P-7 has been attached are: In view of the ruling of the Division Bench which stands confirmed by the judgment of the Supreme Court in [PRECEDENT], the eleven certificates cannot be enforced. The order levying penalty is not sustainable and hence the same cannot be enforced against the legal representatives ; since the liability under the [ACT] had already been fully cleared, it is not open to the respondents to initiate proceedings for the collection of penalty and interest under the said Act; the interest charged in terms of the settlement is a contractual liability and the same, therefore, cannot be recovered from the legal heirs who are not defaulters themselves ; on the death of a party, the agreement abates ; the imposition of penalty amounting to Rs. 25,42,020 is contrary to the settlements, assuming the settlements are valid ; the proceedings for recovery initiated under the Act (only under the [ACT], recovery could be had, it is submitted, in view of the Supreme Court judgment) is not sustainable. There is no provision in the [ACT] empowering the authority to levy penalty and interest. The recovery proceedings, therefore, are not sustainable.
8. The Revenue contends that the decision in the earlier writ petitions, since the same would operate as res judicata, disentitles the petitioner from raising the above contentions except perhaps the one that the recovery proceedings could be had only under the [ACT]. The points now raised are points which the petitioner, ought or in any event, might have raised in the earlier petitions. A reference in this connection to the following averments contained in the counter-affidavit of the second respondent is profitable :
"It is submitted that the subsequent certificates issued pursuant to the demands for the interest accrued subsequent to December 31, 1965, cannot also be challenged in these proceedings since most of the issues raised in this proceeding, as submitted earlier, are supported by the principle of might and ought' or to put it differently, by the bar of res judicata."
9. One other contention the petitioner can perhaps raise is that no proceeding for recovery by the Tax Recovery Officer, based on the corrected certificates dated Jujy 29, 1969, which were issued after the decision of the learned single judge can be initiated against the legal representatives. It is further contended that the finding of the learned single judge in the earlier original petitions that "interest and penalty are also leviable under the terms of exhibits D-l and D-2 settlements", as the same has not been interfered with by the Division Bench or the Supreme Court, has become final and conclusive between the legal representatives of the deceased and the Revenue. The finding of the Division Bench, which reads as follows, has become final because the Supreme Court has not interfered with the said finding :
"We see no reason to hold that the attachment is invalid"
10. The settlements arrived at almost 30 years ago are beyond challenge particularly for the reason that the earlier decision of this court confirmed by the Supreme Court has proceeded as if the said settlements are legal and valid. Yet another contention of the Revenue is that the Division Bench has not set aside the certificates ; on the other hand, the Division Bench has left open the question as to whether they can be corrected and proceedings for recovery continued. The corrected certificates, therefore, can be enforced against the legal representative because the Revenue has ample jurisdiction to correct the mistakes seen in the certificates under [SECTION] of the Act, the Revenue submits.
11. The petitioner has a further case that the recovery initiated by exhibit P-7 is barred by limitation. The Revenue countered this contention on two grounds : (1) No such plea has been raised in the original petition and (2) the proceedings for recovery must be deemed to have been commenced with the issuance of the certificates, as observed by the Supreme Court in [PRECEDENT].
The questions :
12. The questions thus arising for consideration are : (1) On the facts and in the circumstances of the case, can the amount covered by the eleven certificates be recovered from the legal representatives of the deceased assessee ? (2) whether the judgment in [CASE NUMBER] and connected original petitions of 1968 (confirmed by the Division Bench and the Supreme Court) operates as res judicata between the parties thereby disentitling the petitioner from raising questions pertaining to the exigibility of tax, penalty and interest? (3) Whether, on the facts and circumstances of the case, could it be said that the proceedings initiated for recovery of the tax dues of late [ENTITY] from his legal representatives are barred by limitation?
13. Question No. 1. I shall state first: The law that governs this point of collection and recovery of any amount otherwise than by way of advance tax, specified as payable in a notice of demand under [SECTION], are governed by [SECTION] of the [ACT]. However, if the recovery of the said amount is sought from a legal representative, can the procedure prescribed under [SECTION] and [SECTION] requires to be followed. The provisions of law that are relevant here, therefore, are [SECTION], [SECTION] and [SECTION]. I shall now consider the scope of these sections and the Rule. [SECTION] provides that where a person dies, his legal representative shall be liable to pay any sum which the assessee would have been liable to pay if he had not died, in the like manner and to the same extent as the deceased. Sub[SECTION] provides that, if the assessee dies after the initiation of the assessment proceedings, the same shall be deemed to have been taken against the legal representative and may be continued against him from the stage at which it stood on the date of the death of the deceased. But, in case no such proceeding has been initiated which could have been taken against the deceased if he had survived, then the same can be taken against the legal representative. Such proceedings, however, shall be dealt with and disposed of in accordance with all the relevant provisions of the Act. Sub-section (3) provides that the legal representative of the deceased shall, for the purposes of the Act, be deemed to be an assessee. [SECTION] empowers the Income-tax Officer to forward to the Tax Recovery Officer (for short, "the TRO") a certificate under his signature specifying the amount of arrears due from the assessee who was in default and the Tax Recovery Officer, on receipt of such certificate, can proceed to recover from such assessee in default the amounts specified therein by adopting one or more of the modes, namely, attachment and sale of the assessee's movable property ; attachment and sale of the assessee's immovable property ; arrest of the assessee and his detention in prison; and appointing a receiver for the management of the assessee's movable and immovable properties. Sub[SECTION] provides that the Tax Recovery Officer can take action under Sub-section (1), notwithstanding that proceedings for recovery of the arrears by any other mode have been taken. It is, therefore, clear from these sections that recovery proceedings against a legal representative ordinarily can be taken only on it being established that the legal representative is an assessee in default or is deemed to be in default within the meaning of [SECTION]. [SECTION], however, provides an exception. Under this Rule, proceedings for recovery of the dues (except by way of arrest and detention) initiated against the assessee in default by the Tax Recovery Officer on the basis of a certificate issued by the Income-tax Officer can be continued against the legal representative of the defaulter in case the defaulter dies at any time after the issue of the certificate, because the legal representative under such circumstances, will be deemed to be the defaulter. In all other cases, the legal representative of a deceased assessee, by virtue of [SECTION], will be deemed to be only an assessee for the purposes of the Act. 1 am fortified in this view by two decisions of the Supreme Court in [PRECEDENT] and [PRECEDENT]. In these decisions, the Supreme Court, while construing [SECTION] of the 1922 Act, corresponding to [SECTION] of the Act, has observed to the effect that a legal representative of a deceased assessee must be deemed to be an assessee within the meaning of [SECTION]. The legal representative, therefore, must be deemed to be an assessee not only for the purpose of assessment but also for the purposes of the levy and recovery of the tax. No recovery proceeding, therefore, can be initiated against the legal representative (except the proceedings contemplated under [SECTION]) unless it be that, he is treated as a defaulter within the meaning of [SECTION] on his failure to pay the tax in terms of the demand notice under [SECTION] served on him by the assessing authority. A Full Bench of the Mysore High Court has expressed the same view in [PRECEDENT], which reads (headnote) :
"On the death of an assessee, the legal representative becomes only an 'assessee'; he would not become 'an assessee in default' until the tax is again demanded from him under [SECTION] (corresponding to [SECTION]) and is not paid within the time allowed by [SECTION]."
14. See also [PRECEDENT]. The Allahabad High Court, in [PRECEDENT] has also expressed the same view. The principles thus deducible from the above discussion are: (1) On the death of the assessee, the legal representative can be treated only as an assessee fur the purpose of the recovery proceedings. (2) No proceeding for recovery against the legal representative under [SECTION], therefore, can be initiated unless he is treated as a defaulter within the meaning of [SECTION] on his failure to pay the amount specified as payable in the notice of demand under [SECTION] served on him after the death of the deceased. (3) Under [SECTION], on the death of the assessee, the proceeding for recovery of the tax taken against him by the issuance of a certificate within the meaning of [SECTION] can be proceeded with against the legal representative from the stage at which the assessee-defaulter died even without the name of the legal representative being substituted in the certificate.
15. It is in this background that the question as to whether the 11 certificates (in dispute) which were issued after the death of [ENTITY] (in other words issued in the name of a dead person) can be corrected by substituting the names of the legal representatives in the place of the deceased assessee and enforced against the legal representatives requires to be considered. It is the common case of the parties that these 11 certificates were forwarded to the Tax Recovery Officer only after the death of the assessee. Counsel for the Revenue submits that [SECTION] empowers the Income-tax Officer to correct the certificates and enforce the same against the legal representatives. In exercise of the said power, the certificates have been corrected (this is the case of the Revenue discernible from the counter-affidavits) by substituting the names of the legal representatives in the certificates and hence these certificates can be enforced against the legal representatives. This argument, in the light of the law explained above, is liable to be rejected. It should, in this connection, be remembered that it is not the case of the Revenue that these proceedings were preceded by a declaration that the legal representatives, inasmuch as they failed to pay the tax dues of the deceased assessee, in terms of the demand notice under [SECTION] served on them after the death of the assessee, are the assessees in default. Nor, for that matter, has the Revenue any case that the proceedings for recovery of the tax dues of the deceased assessee initiated by the Tax Recovery Officer on the basis of the certificates forwarded to him are governed by [SECTION]. The argument of counsel for the Revenue that the corrected certificates can be treated as fresh certificates forwarded to the Tax Recovery Officer enabling him to recover the tax dues of the deceased assessee from the legal representatives cannot however be taken cognizance of because the Revenue, as already noted, has no case that the legal representatives failed to pay the dues as per the demand notice served on them by the Income-tax Officer after the death of the assessee. The legal representatives are yet to be declared as assessees in default. If that be so, the 11 certificates in dispute, to my mind, cannot be enforced against the legal representatives including the petitioner even assuming that those certificates, after the correction, must be deemed to be fresh certificates forwarded to the Tax Recovery Officer.
16. The second point: It is a well-established principle that the, doctrine of res judicata or estoppel by record does not apply to findings or decisions of the assessing authority since that authority is not a court. That is why it is always said that a finding or a decision of the income-tax authorities for one year may be departed from in a subsequent year. But there is an exception to this principle and it has been succinctly stated by a Full Bench of the Madras High Court in [PRECEDENT] thus :
" Where the question relating to assessment does not vary with the income every year but depends on the nature of the property or any other question on which the rights of the parties to be taxed are based, e.g., where a certain property is trust property or not, it has nothing to do with the fluctuations in the income, such questions if decided by a court on a reference made to it would be res judicata in that the same question cannot be subsequently agitated."
17. See also [PRECEDENT] and [PRECEDENT]. A similar view has been taken by the Delhi High Court in [PRECEDENT]. See also the discussions on the subject in [ENTITY] and [ENTITY]'s Law and Practice of Income-tax, 8th Edn. Vol. I, pages 1145 and 1146. It is worthwhile to keep in mind that such decisions on matters in controversy in writ proceedings would operate as res judicata in subsequent writ proceedings or even in regular suits on the same matters in controversy between the same parties. It has been so held by the Supreme Court in [PRECEDENT]. The Supreme Court has observed thus (p. 1372) :
"There is no good reason to preclude such decisions on matter's in controversy in writ proceedings under [SECTION] or [SECTION] of the [ACT] from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest."
18. The Supreme Court has also declared that a decision in a writ proceeding can operate as constructive res judicata as well. The above principle, in my view, squarely applies to the facts of this case. A reference in this connection to the facts stated in paragraph 6 (see p. 539), discernible from the counter-affidavit of the Department, is profitable. These facts do indicate that the decision of the court giving quietus to the dispute would be res judicata in that the same dispute cannot subsequently be considered by any court. Counsel for the petitioner, however, contended that the finality attached to any such proceedings, however, shall not debar the legal representatives from challenging the correctness of the levy at the time of recovery in view of the provisions contained in [SECTION] of the [ACT]. To attract [SECTION], it should be established that the levy or the collection of tax or both levy and collection are without the authority of law. The question, therefore is, could it be said that the dues in dispute has been levied without the authority of law ? The answer is no; because the levy has, as its basis, the settlements made under [SECTION] of the [ACT] which remained in force at the time when the settlements were made, by virtue of [SECTION] of the Central Act, namely, the [ACT]. I shall now read relevant parts of [SECTION], namely, [SECTION] and [SECTION] :
"9(1) Settlement of cases under investigation. Where any person concerned in any case referred to or pending before the Commission for investigation applies to the Commission, at any time during such investigation, to have the case or any part thereof settled in so far as it relates to him, the Commission shall if it is of opinion that the terms of the settlement contained in the application may be approved, refer the matter to our Government and if our Government accept the terms of such settlement, the Commission shall have the terms thereof recorded and thereupon the investigation, in so far as it relates to matters covered by such settlement, shall be deemed to be closed.
(2) For the purpose of enforcing the terms of any settlement arrived at in pursuance of Sub-section (1), our Government may direct that such proceedings as may be appropriate under the [ACT], the [ACT], the [ACT], the [ACT] or any other law, may be taken against the person to whom the settlement relates, and in particular, the provisions of the second proviso to Clause (a) of Sub-section (5) of [SECTION]0, [SECTION]4, the proviso to [SECTION], the proviso to [SECTION] and [SECTION] and [SECTION] of the [ACT], shall be applicable to the recovery of any sum specified in such settlement by the Income-tax Officer having jurisdiction to assess the person by whom such sum is payable as if it were income-tax or an arrear of income-tax within the meaning of those provisions."
19. The cumulative effect of [SECTION] and [SECTION] of the [ACT] is that the Central Government is competent to accept the terms of the settlement. [SECTION] empowers collection of the dues as per the settlement by initiating recovery proceedings under the appropriate provisions of the [ACT] or any other law in force at the relevant time. Construing this provision, the Division Bench held (and this has been approved by the Supreme Court) that proceedings to recover the dues as per the settlement can be initiated under the [ACT]. This argument of the petitioner, therefore, is rejected.
20. Counsel then submitted that the petitioner can establish that the settlements were arrived at ignoring the provisions of the statute and hence the settlements are liable to be declared invalid. In support of this contention, he relied on a decision of the Supreme Court in [PRECEDENT], where the Supreme Court has observed to the effect that no party can contract out of the statute. This is what the Supreme Court has said (headnote) :
" there was no question of an agreement or settlement, because [SECTION] did not empower the Income-tax Officer to enter into an agreement or settlement in order to bind the Revenue, and it was not within the competence of the Income-tax Officer to vary the rate of interest fixed under [SECTION] from time to time."
21. The above observations, in my view, the petitioner cannot press into service for two reasons : (1) the above contentions are barred by the doctrine of constructive res judicata. It is relevant in this context to refer to the decision of the Supreme Court in [PRECEDENT]. The Supreme Court has declared the law thus (headnote) :
"Where a writ petition under [SECTION] is disposed of on merits and the order of dismissal of the petition is a speaking order, that would amount to res judicata and would bar a petition under [SECTION] on same facts, irrespective of whether a notice was issued to the other side or not before such decision was given "
22. (2) the levies are based on the two settlements aforementioned made under [SECTION] of the [ACT]. The liability that springs from these settlements, therefore, cannot be said to be contractual liability simpliciter. The deeming provision in [SECTION] makes it clear that the amounts found due as per the settlement can be recovered as if it was income-tax or an arrear of income-tax within the meaning of the [ACT]. To put it pithily, the judgment in the writ petitions, confirmed by the Division Bench as also by the Supreme Court, would amount to res judicata and, as such, it disentitles the legal representatives to rake up these contentions by filing a fresh application under [SECTION] ; and if that be so, question No. 2 necessarily should be answered against the petitioner.
23. Question No. 3. [SECTION] provides that recovery proceedings under the Act shall be commenced within one year from the last day of the financial year in which the demand is made or, in the case of a person who is deemed to be an assessee in default, from the last day of the financial year in which the assessee is deemed to be in default. The period of limitation will automatically get extended if any of the situations made mention of in [SECTION] exists. Explanation (2) says that a proceeding for the recovery of any sum shall be deemed to have commenced within the meaning of this section if some action is taken to recover the whole or any part of the sum within the period hereinbefore referred to. The aforesaid period of limitation, however, is not applicable to cases which are governed by [SECTION] or [SECTION]. This in short is the scheme of the section. This scheme of the section shall be kept in view while considering the respective arguments of counsel representing the petitioner as also the Revenue. I have already found that the 11 corrected certificates cannot be enforced against the legal representatives. If that be so, the argument of counsel for the Revenue, based on the observation of the Supreme Court in [PRECEDENT], namely, "it is clear to us, after perusal of that so called "orders" sought to be quashed that they were only notices of commencement of recovery proceedings by attachment of certain properties" that it must be held that recovery proceedings have been commenced within the stipulated period although the tax recovery certificates in the beginning were invalid, is without substance. That does not mean that the Revenue has no power to initiate proceedings against the legal representative to recover the amount of arrears due from the deceased assessee by following the procedure prescribed under [SECTION] and [SECTION] of the Act. As already observed, no recovery proceedings can be initiated against the legal representative (unless it be a case falling under [SECTION]) without declaring him to be a defaulter on his failure to pay the tax in terms of the demand notices served on him subsequent to the death of the assessee. No such proceedings, admittedly, have been taken against the legal representative by the Revenue. It is made clear that this judgment will not preclude the Revenue from initiating such proceedings against the legal representatives as provided for under the Act The third question, to my mind, therefore, does not arise for consideration.
24. Yet another argument advanced on behalf of the petitioner can be stated thus : Relying on the observations of the Supreme Court in [PRECEDENT], namely, that (p. 457) :
"It has also been stated on behalf of the Department that it has no objection to the application of the procedure laid down in the [ACT] for recovery of such dues against the appellants as are realisable from the assets of the deceased. In view of this concession, it is unnecessary for us to deal with the question whether there was any additional burden or disadvantage imposed upon the appellants by the procedure in the [ACT]. In view of this concession, the Tax Recovery Officer will only use the procedure in the [ACT] so far as it is possible to apply it."
25. Counsel submits that the Department can recover the dues in question only by following the procedure prescribed in the [ACT]. The recovery proceedings, inasmuch as the same is initiated under the [ACT], therefore, are liable to be quashed. I am not impressed by this argument. The Supreme Court, to my mind, has made it clear that only so far as it is possible, i.e., to the extent it is possible, the Tax Recovery Officer will use the procedure prescribed under the [ACT] to recover the dues from the legal representative. That recovery of arrears of the dues under the [ACT] can be had under the [ACT] in view of [SECTION] of the [ACT], has been declared by the Division Bench. The Division Bench has also declared that the said dues can now be recovered under the, [ACT]. It is relevant here to refer to the following observations of the Division Bench which does have the stamp of approval of the Supreme Court (p. 90 of 80 ITR):
"The appellant's counsel argued that there was excessive delegation of authority by the Central Government to the Income-tax Officer, in that there was no specification by the Central Government of the law under which the proceedings should be taken by him. We think that the power vested in the Central Government under [SECTION] of the Act of 1950 was plenary in character. The Central Government thought that for taking effective steps against the defaulter according to the exigencies of the situation, the Income-tax Officer should have the choice of the law under which the proceedings should be taken. The plenary power to proceed under any law, having been granted to the Central Government, there was nothing wrong in the Central Government leaving the choice of the law to the Income-tax Officer. After all, so long as the recovery can be only in accordance with law, the choice of alternative laws substantially similar in character can well be left to the authority effecting the recovery. We think that the arrears of income-tax due for these two years which could have been recovered under the [ACT], can now be recovered under the provisions of the [ACT]?
26. The aforesaid finding that the Department can initiate recovery proceedings under the [ACT] as well was under challenge before the Supreme Court on the ground that the procedure for recovery available under the [ACT] imposes additional burden or disadvantage to the legal representative when compared to the procedure prescribed in this regard under the [ACT]. The question whether there was any additional burden or disadvantage imposed upon the legal representative by the procedure in the [ACT] was not dealt with by the Supreme Court in view of the concession given by the Department, in the words of the Supreme Court, namely, that "the Tax Recovery Officer will only use the procedure in the [ACT] so far as it is possible to apply it". It is none the less clear from these observations of the Division Bench and the Supreme Court that neither of them has held that the demands raised under the [ACT] cannot be recovered at all. The above observation of the Supreme Court, in any view, recognises the right of the legal representative to challenge the proceedings for recovery of the dues under the [ACT] initiated under the [ACT] on the ground that the said procedure imposes upon them additional burden or disadvantage unless it be that the Department has given a cogent explanation as to why the Department bypassed the procedure for recovery prescribed under the [ACT]. On going through the pleadings in the original petition, it is clear that the petitioner, however, has no such case. The only case he has set up in the petition in this regard is the one which he cannot raise in view of the judgment in the earlier original petition. The above argument of counsel, therefore, is rejected.
27. Counsel for the petitioner has a further case and it is this : some of the items shown in exhibit P-7, for instance, items Nos. 1, 7 and 21, cannot be recovered by enforcing the 11 certificates. Whether any such mistake has crept in these certificates, for want of pleading, cannot be considered, counsel for the Revenue submits. It is unnecessary to go into this question in view of the declaration that the 11 certificates cannot be enforced against the legal representative. This question, therefore, is left open.
28. There will, therefore, be a declaration that the 11 certificates in dispute are not enforceable in law against the legal representatives.
29. The original petition is allowed to the extent indicated above. There will be no order as to costs.