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TMI Blog1952 (9) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... accounting period from 1-6-1945 to 31-5-1946, the assessment year being 1948-47. In regard to this year the Income-tax Officer found certain defects in the accounts and did not accept them. The cash book and ledger for the period 6-12-1945 to 12-1-1946 and vouchers from 1-6-1945 to the January 1946 were not produced before him. The Income-tax Officer also required the production of a copy of a judgment in liquidation proceeding given by Teja Singh, J., and also a copy of the petition for winding-up filed by Sm. Ram Murti Devi. In this return the profit shown by the petitioner was ₹ 1963/-only. On 30-9-1951 when the assessment was made the Income-tax Officer found the net Income to be ₹ 7,62,363/- and imposed a tax of ₹ 3,33,533/13/-. He acted under Section 23 (4), Income-tax Act. Notice for demand for this sum was sent on 6-10-1951 but the petitioners made an application to the Income-tax Officer under Section 27, Income-tax Act for cancellation of the assessment. On 17-11-1961 this was dismissed and an appeal was taken to the Appellate Assistant Commissioner, Income-tax. He dismissed the appeal on 17-3-1952 but remarked in the course of his order that the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the balance was stayed for three months and it was to be paid by monthly instalments of(sic) 60,000/- in January, February and March(sic) and the balance to be paid by 31-3-1953. 8. Counsel for the petitioners submits that the Income-tax Officer has not exercised his discretion properly in accordance with sound judical principles and he should be commanded to order the stay of recovery of income-tax. He has pointed out to us the defect which according to his existed In the order of assessment dated 30-9-1951 the main objections being that the Income-tax Officer was affected by the non-production of the cash book and the ledger from 6-12-45 to 12-1-1945 and of vouchers from 1-7-1945 to 12-1-1946, and for failure to produce a copy of the judgment of Teja Singh J. and the petition winding-up by Sm. Ram Murti Devi, and also(sic) taking into consideration the profits made b(sic) another concern which is situate in the same area, Whether these reasons for rejecting the accounts of the petitioners were sound or otherwise is not for us to say at this stage. The fact remains that he applied Section 23(4), Income-tax Act and that is the subject-matter of an appeal before two tribunals a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the assessee as not being in default, as long as such appeal is undisposed of ...... It is submitted by the Advocate-General that as far as the payment is concerned the (sic) is imperative and requires that the amount shall be paid. The discretion, if any, is in the matter of declaring a person to be or not to be in default, and he has referred to Sampath Iyengar's Indian Income-tax Act, page 1021, Para 1088, the purport of which is that there is no power of stay and although such a power was recommended to be vested in Assistant Commis-sioner and Appellate Tribunals by an Enquiry committee it was not put in the Act. 10. The Advocate-General also submits that the Income-tax Officer in the present case has exercised a discretion and it cannot be interfered with by a writ under Article 228 of the Constitution of India. He has first relied on Para. 1279 (sic) Vol. 9 of Halsbury's Laws of England, Halis- (sic) Edn.'at p. 751, where it is stated: A writ of mandamus will, be granted ordering that to be done which a statute requires to be done. ..... it must appear that the statute in question imposes a duty, the performance , or non-performance of which is not a mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner. At p. 591, Channel, J. stated the law in the following words: I think also that even where the facts are all admitted, so that in the particular circumstances of a particular case -- as my brother has pointed out in this case -- there happens to be but one way of performing that duty, still the 'mandamus' goes to perform the duty, not to perform it in a particular way. 13. In Section 45, Specific Relief Act the principles are set out which are applicable in the matter of petitions under Article 226, see Civil Writ No. 279 of 1951. A 'mandamus' issues where the doing or forbearing of an act is clearly incumbent. 14. In America also the law is the same. See Hart's introduction to Administrative Law, p. 440. It has been decided by the Courts in America in regard to issuance of a writ of 'mandamus' that the leading principle is that 'mandamus' will be granted to command the performance of a ministerial act but never to control the exercise of discretion: --'Roberts v. United States', (1900) 178 Under Section 221; --'Ness v. Fisher', (1912) 223 Under Section 683. I5. In --'Interstate Commerce Commission v. Humbold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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