9911796707
TMI Blog1955 (11) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... he disposal of the appeal filed by the petitioner. The petitioner was assessed by the Income-tax Officer, A Ward, Farrukhabad, by his orders dated 15th of March, 1954, 28th of February, 7th of February, and 15th of March, 1955, to income-tax amounting to ₹ 75,477 for the assessment years 1945 to 1951. Appeals were filed against the aforesaid orders before the Appellate Assistant Commissioner. A notice of demand was sent to the applicant and on his failure to deposit the amount of the tax, the applicant was ordered, by an order dated 27th of May, 1955, to deposit the whole amount of tax within three days. Thereafter the penalty was to be imposed upon the applicant under section 46(1) of the Income-tax Act at 10 per cent. Against the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner from Raja Sharda Narain Singh of Tirwa, and that it should be realised from him under section 46(5A). Thereupon a letter was sent to Raja Sharda Narain Singh. The Raja informed that a sum of ₹ 5,000 only was due from him and that too was lying with the Civil Judge on account of the assessee's refusal to sing a voucher jointly. The applicant was duly informed by the Income-tax Department on the 9th of July, 1955. As the applicant had not paid anything, his request for the stay of realisation was rejected. Although the application had been rejected, the petitioner's counsel was informed verbally that he could pay the amount by instalments if he liked but the petitioner's counsel did not agree to the proposal. Thereupon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the time, at the place and to the person mentioned in the notice or order, or if a time is not so mentioned, then on or before the first day of the second month following the date of the service of the notice or order, and any assessee failing so to pay shall be deemed to be in default, provided that, when an assessee has presented an appeal under section 30, the Income-tax Officer may in his discretion treat the assessee as not being in default as long as such appeal is undisposed of." The filing of an appeal does not under section 45 amount to an automatic stay of the realisation of the amount of tax. By merely filing an appeal it cannot be said that the failure to pay the amount within the time specified in the notice of dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es where an appeal has been filed, there is a duty cast upon the Income-tax Officer not to regard the assessee as a defaulter, I have no hesitation in differing from that opinion. It has been held in Lord Krishna Sugar Mills Ltd. v. Income-tax Officer, Ambala, and Another [1952] 22 I.T.R. 410., that the power given to the Income-tax Officer under section 45 is discretionary and it is not necessary in each case that the Income-tax Officer should not regard the assessee as a defaulter in case an appeal has been filed against the order of assessment. There is, therefore, no force in the first point raised by the applicant. The second contention of the applicant is that in the circumstances of the present case, the exercise of discretion was a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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