9911796707
TMI Blog1951 (2) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... 28th of February, 1941, and entered into a written agreement of partnership on the 16th of October, 1941. The firm of the petitioners was duly registered under the Indian Partnership Act on the 19th July, 1943. The petitioner Ladhuram had 8 as share and the petitioners Ganpat Rai and Bhairodan had 4 as share each in the said firm. The firm was first assessed to income-tax in respect of the year of assessment 1942-43 and for that purpose it was registered under Section 26A of the Indian Income-tax Act. For the years of assessment 1943-44 and 1944-45 registration under Section 26A of the Act was renewed and similar assessment were made. The last of such assessment was made by the respondent. But in making the assessment for the year 1945-46 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 30 of the Act against the assessment order made upon them and also against the order refusing to renew the registration under Section 26A. It is stated in the petition that the assessment is without the authority of law and is ultra vires the powers of the respondent. On the 20th April, 1950, the petitioners firm applied to the respondent for granting them sufficient time to consider the matter and for payment of the legitimate tax but the respondent has not acceded to such request thereby denying justice to the petitioners. In the circumstances the petitioners have moved this court for the reliefs stated above. Section 45 of the Indian Income-tax Act provides that any amount specified as payable in a notice of demand shall be paid wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 45 of the Indian Act should be exercised in a reasonable and judicious manner and not arbitrarily. It is further submitted that the power or the discretion conferred upon the Income-tax Officer under Section 45 of the Act can under certain circumstances become coupled with a duty. Reliance is placed on the observations of Cairns, L. C., which are as follows :- "They confer a faculty or power and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person in whom the power is reposed, to exercise tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate authority. The interest of the revenue of the Government had been fully safeguarded by such protective assessments. There was also a serious question of law involved as to whether the Income-tax Officer had jurisdiction or authority to assessee and imaginary firm without a proper return being submitted by such firm and without properly initiating proceedings for assessment under the Act in respect of such firm. Moreover payment of such a heavy sum within the time fixed by the notice of demand was not an easy matter and might have the effect of completely ruining the business of the petitioners firm and of those five other firms. It cannot be said with any definiteness that there is no substance in the appeal or that the appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all : (See Queen v. Bishop Of London). Apart from that in the facts of this case the discretion has become coupled with a duty. It was also contended on behalf of the respondent that there was no distinct demand upon the respondent not to treat the petitioners as defaulters as a result of their not complying with the notice of demand within the time fixed by the notice, and as such the present application is not maintainable. I am unable to accept this contention, paragraph 11 of the petitioner and the letter of Mr. Gupta, the pleader for the assessee, to the Income-tax Officer dated the 20th April, 1950, annexed to the affidavit of the respondent affirmed on the 21st August, 1950, show that there was a sufficient demand on the part of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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