KUMARAN Vs. 1ST ADDL ITO KOZHIKODE

JUDGEMENT

(1.) THE appellant's writ petition has been disallowed by a learned judge of this Court. Before March 13, 1946 , he was a member of the Hindu undivided family of Messrs. Mootharakutty & Sons and got half share in the business from April 1, 1946 , when the partition in the family was recognised. He, therefore, became a new assessee from 1947-48 assessment year. On September 10, 1947 the appellant filed a voluntary return of his income, but he did not file an estimate of his total income and pay advance tax as required by S. 18a (3) of the Income-tax Act, hereafter to be referred as the Act. A default has then been committed and penal interest has become leviable under S. 18a (8)of the Act.

(2.) THE Income-tax Officer by order of April 29,1951, made provisional assessment under S. 23b and assessed the petitioner on a total income of Rs. 42,172/ -. THEreafter, the Officer by order of March 30, 1952 , completed the assessment under S. 23 (3) on a total income of Rs. 73,275/ -. THE appellant filed an appeal to the appellate Assistant Commissioner, who, by order of August 22 ,1955 , reduced the total income to Rs. 64,602/-, and the tax to Rs. 24,982-3-0.

(3.) AS regards the reliance on the next ground, we feel the argument to be equally inadequate. In Lata Mangeshkar v. Union of India (36 I. T. R. 527) the learned judges have distinguished the case relied on by the appellant's advocate and have held that where no payment of advance tax has been made by the assessee in accordance with S. 18a, the Income-tax Officer has no discretion in the matter of reducing or waiving interest under sub-section (8), and the fifth proviso to sub-section [6], which invests the income-tax Officer with such a discretion, is not applicable to cases falling under sub-section [8]. It is conceded before us that the appellant had paid no tax and his case would be therefore covered by S. 18a [8] and not by sub-section [6]. It follows that under the former sub-section the Income-tax authorities would be bound to levy the penal interest) and the mistake being apparent the officer has not legally erred in assessing the appellant to such an interest. This appeal, therefore, fails, and is dismissed with costs. Rs. 200/- is fixed as advocates fee. Dismissed.