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TMI Blog1962 (2) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... g the assessment as such is that it is arbitrary and the figures mentioned therein are not related to the facts as they exist. There is also a contention that, after having rejected the accounts of the petitioner, the assessing authority has not issued any pre-assessment notice informing the petitioner of the basis on which he proposed to make a best judgment assessment as has been laid down by several decisions of this court. 2. The attack that is made against the order levying penalty under exhibit P-8 is that the petitioner after filing an appeal has admittedly made a request under exhibit P-3 dated June 9, 1960, and repeating the same request by subsequent applications made not to treat the petitioner as in default under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first levy of penalty, exhibit P-8, are both the subject of direct attack in appeals preferred by the assessee and these appeals are pending adjudication before the Appellate Assistant Commissioner. 5. Though there seems to be considerable force in the grievance voiced on behalf of the petitioner by Mr. Rama Shenoi regarding the assessment order passed as such as also the procedure adopted by the assessing authority in levying penalty under exhibit P-8, it is not possible for this court to grant relief regarding these orders in view of the Division Bench ruling of this court to the effect that the powers under article 226 of the Constitution should not be ordinarily exercised when the appeals against the orders under attack are p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he application filed by the petitioner long before the order, exhibit P-8, was passed under section 40 was pending and the officer has not chosen to exercise his discretion properly when he no doubt purported to dismiss the same under exhibit P-11 as late as October 10, 1960. Therefore, the order imposing the second levy under exhibit P-14 dated November 30, 1960, is quashed and as I mentioned earlier as far as the orders, exhibit P-1 and exhibit P-8, are concerned, the petitioner has to seek appropriate reliefs in the appeals that are actually pending before the Appellate Assistant Commissioner. 8. Therefore, this writ petition is allowed to the extent mentioned above and the parties will bear their own costs. 9. As there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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