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TMI Blog1968 (1) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution to forbid the respondent from taking any recovery proceedings against the petitioner's husband in pursuance of an order of assessment made against him on March 22, 1966. The petitioner is the wife of the assessee and she says that, though her husband is a citizen of India, he has been prevented from coming over to India from Malaya since September 6, 1965. For the year 1961-62, he returned an income of Rs. 4,500, but the respondent added a sum of Rs. 58,000 and charged him to tax on a total income of Rs. 62,002. A demand was made on the assessee on March 28, 1966, for payment of the balance tax due, that is, Rs.32,282.10. Against the order of assessment, the assessee filed an appeal on April 8, 1966, and on the same day, hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant Commissioner, whichever was earlier. It appears, pursuant to the Commissioner's orders, the respondent issued two chalans three days later, one for Rs. 16,000 and the other for the balance of arrears and also issued a certificate to the District Collector, Thanjavur, for recovery of the arrears, but with a request with not to proceed immediately the collection, in view of the Commissioner's orders aforesaid. Even then the assessee failed to pay any amount towards the tax arrears. In view of the default, the first respondent on January 11, 1967, levied a penalty of Rs. 1,500 for the persistent failure to pay the arrears or any part thereof. When the recovery proceedings were proceeded with, the assessee preferred objections thereto on c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to granting stay on furnishing security. Section 220 deals with collection and recovery of tax. It provides that, on service of the demand notice, the tax should be paid within the period of 35 days and that if the demand is not complied with within the timelimit, the assessee should be treated as being in default. Sub-section (3) provides that an assessee may, before the expiry of the time fixed in the demand notice for payment, apply for stay and the Income-tax Officer may on such application extend the time for payment or allow payment by instalments, subject to such conditions as he may think fit to impose in the circumstances of the case. Where, however, the assessee has preferred an appeal under section 246, the Income-tax Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r its exercise existed and that the fact that the exercise of the power was left to the discretion of the officer did not exonerate him from discharging his duty. Reference was made by the learned Chief Justice to the classical dictum in Maxwell : According to his discretion means, it has been said, according to the rules of reason and justice, not private opinion, according to law and not humour ; it is to be not arbitrary, vague and fanciful, but legal and regular ; to be exercised, not capriciously, but on judicial grounds and for substantial reasons. And it must be exercised within the limits to which an honest man competent to the discharge of his office ought to confine himself, that is, within the limits and for the objects intended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition, the discretion given to the Income-tax Officer under sub-section (6) of section 220 is limited to grant of stay in the sense that the assessee will not be treated as being in default in respect of the disputed amount in the appeal, subject only to the condition that security is furnished for that amount. It is true that the power of the Income-tax Officer under sub-section (6) is in his discretion to treat the assessee as not being in default in respect of the disputed amount in the appeal, but in a sense and in effect, when the Income-tax Officer treats an assessee as not being in default, it amounts to stay of collection of the amount in dispute. Sub-section (6), if regard is had to the language employed therein, does not in so man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding a power to impose a condition for instalmental payment. The argument seems to us to overlook the mutual scope and purpose of the two sub-sections. Sub-section (3) deals with not the disputed tax but the whole amount in arrear. The power given to the officer is to extend the time for payment or allow payment by instalments, and even then subject to such conditions as he may think fit to impose in the circumstances of the case. But, in sub-section (6), the language employed is even wider and the discretion to be exercised is not limited to extension of time for payment on condition that it will be paid by instalments. It has not been suggested that the respondent or the officers higher up failed to take relevant circumstances or exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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