9911796707
TMI Blog1962 (5) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act. The facts leading up to this petition are these. The assessee company was incorporated on the 29th May, 1941. It carries on the business of publishing and printing at Aligarh with branches at other places. The company was assessed for the first time to income-tax and excess profits tax for the assessment year 1942-43 and the relevant chargeable accounting period. The assessee continued to make advance payments of tax and assessments continued to be made from assessment years 1942-43 to 1954-55 and according to the assessee the amounts refundable to the petitioner up to the assessment year 1954-55 worked out to ₹ 91,368.62 nP. The total loss to be carried forward from the year 1953 to the following year amounted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 18A(5) and depriving the assessee's interest on the said advance payment on the ground that the regular assessment was made on the 31st March, 1959, and yet not refunding the advance which had been deposited. In the first relevant assessment year 1955-56 the assessee had filed a return showing a loss of ₹ 37,218. The Income-tax Officer estimated the assessee's income at ₹ 1,01,683 by an assessment order dated 30th March, 1960. Against the income so determined the Income-tax Officer only set off ₹ 17,502, which was the loss carried forward according the assessment order for 1954-55 and levied tax on a net income of ₹ 84,181 and the tax of ₹ 42,709-27 nP. was demanded by a notice of demand date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Commissioner. The assessee continued to make efforts to get the Income-tax Officer to make the necessary revisions and refunds and to dispose of its application under section 35 of the Act but without any substantial result. The petitioner finally sent an application dated 30th December, 1961, giving details of the refunds due and also another application under section 45 requiring the opposite party to exercise its discretion under section 45 of the Act in respect of the demands for the assessment years 1955-56 and 1956-57. The Income-tax Officer sent a reply dated 10th January, 1962. Though this reply mentions applications but the tenor of the reply indicates that the question of exercising discretion, under the proviso to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income-tax Officer to finalise the refunds which have been pending since the assessment year 1942-43; further for the assessment year 1954-55 in spite of the assessee having paid a larger amount of advance tax and on a regular assessment having been made, which was subsequently set aside by the Appellate Assistant Commissioner on appeal, the Income-tax Officer had not cared to take any steps to make a fresh assessment. In any event when on the basis of the original assessment made by the Income-tax Officer the position was that the Income-tax Officer himself had determined the loss to be carried forward to the following years at ₹ 17,502 and even though the fresh assessments may not have been made in accordance with the directions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd report called for in respect of the appeal for 1955-56 and, therefore, the Income-tax Officer was obviously in too much of a hurry in making the demand of ₹ 58,971-58 on the 23rd of December, 1961, for the assessment year 1956-57. The levy of penalty under section 46(1) on the 22nd January, 1962, without first disposing of the assessee's application dated 30th December, 1961, under section 45 cannot possibly be supported. Section 45 provides that when the demand under section 29 has been made and the assessee has failed so to pay he shall be deemed to be in default, provided that, when an assessee has presented an appeal under section 30, the Income-tax Office may in his discretion treat the assessee as not being in d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owers under article 226 of the Constitution. The view that I have taken finds support from the case decided by the Assam High Court in Hardeodas Jagannath v. Income-tax Officer, Shillong [1961] 43 ITR 562 . The penalties levied under section 46 of the Act stand on even a weaker footing. A learned single judge of this court in Writ Petition No. 2624 of 1957, dated 3rd October, 1961, has taken the view that no penalty under section 46(1) can be imposed, having regard to the principles of natural justice, without first issuing a notice to such person. Admittedly, no notice was issued or opportunity given to show cause before penalty for failure to pay the demand was levied. The levy of penalties therefore is wholly unsustainable. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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