N SAVITHRI SAM Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THIS petition is to direct the Income tax Officer, Central Circle I, Coimbatore, to consider the application dated June 12, 1967, of the petitioner under section 220(6) of the Income tax Act, 1961. On May 17, 1967, the Income tax Officer communicated to the petitioner that, having regard to his representation to the Commissioner of Income tax on April 9, 1967, in regard to the payment of tax, the Income tax Officer was prepared to stay the collection of the tax in dispute in the appeal, if he paid one half relating to the assessment year 1961-62 before May 25, 1967. The Income tax Officer added that, if the petitioner defaulted, even the limited stay would be deemed to be withdrawn. On June 12, 1967, the petitioner applied to the Income tax Officer and stated that as soon as a piece of land mentioned therein was sold, he would realise Rs. 25, 000 and pay the same over towards the tax arrears immediately. The petitioner further stated that the Income tax Officer should bear with his difficulties and consider his case sympathetically. In the meanwhile, it appears, a representative of the petitioner met the Income tax Officer and explained his difficulties. Noting that the petitioner did nothing thereafter, the Income tax Officer intimated to the petitioner that the terms of big earlier letter dated May 17, 1967, could not be altered but he was prepared to give time for payment till June 12, 1967, and if there was no payment there would be no stay.Until June 12, 1967, there was thus no application before the Income tax Officer himself to exercise his power under section 220(6).

(2.) THE letter of the Income tax Officer dated May 17, 1967, naturally, therefore, embodied only the direction of the Commissioner of Income tax, which was given on the representation directly made to the Commissioner by the petitioner. But the order of the Income tax Officer dated June 6, 1967, extending the time for payment of one half of the disputed tax till June 12, 1967, was obviously in exercise of his own power under section 220(6). But what is complained against in this petition is that the correspondence we have referred to shows that the Income tax Officer was under the impression that the Commissioner having passed an order he had no alternative but to follow it. Our attention has been invited to paragraph 4 of the counter affidavit where the position taken up is that, while the Income tax Officer would have been the proper authority to be approached for stay, and not the Commissioner himself, when once the petitioner approached the Commissioner and the latter made an order, it was the duty of the Income tax Officer to carry out the Commissioner's orders and not to vary them. On this basis the revenue proceeds in the counter affidavit to say that, that being the position of the Income tax Officer, no mandamus can issue to him. We are of the view that this is not a correct stand to take. THE jurisdiction of the Income tax Officer under section 220(6) is quasi judicial and has been exclusively entrusted to him by the statute. It follows, therefore, that he has got a duty to apply his own mind to the question of grant of stay, not controlled in such exercise by any direction or guidance by any higher authority including the Commissioner. It is true the Commissioner of Income tax is higher up in the hierarchy of officials of the income tax department and as such he has got administrative jurisdiction over all his subordinates.