SANTOSH KUMAR AGARWAL Vs. TAX RECOVERY OFFICER

JUDGEMENT

(1.) IN this petition under Article 226 of the Constitution, the petitioner has prayed for issue of a writ for quashing the proceedings for recovery of income-tax demanded from him for the assessment years 1954-55 and 1955-56.

(2.) MOST of the material facts are not in dispute and they may be stated. For the assessment years 1954-55 and 1955-56 the Income-tax Officer, Circle 1(10), Kanpur (hereinafter referred to as "the I.T.O."), purported to make provisional assessments under Section 23B of the Indian Income-tax Act, 1922 (hereinafter referred to as "the Act"). Demand notices were issued to the petitioner in pursuance of such provisional assessments. As the petitioner defaulted in paying the amounts so demanded, the I.T.O. levied two sums of penalty of Rs. 5,000 and Rs. 7,500 on January 27, 1956, and March 5, 1956, respectively, for those two years. On March 15, 1956, the I.T.O. also issued to the Collector, Kanpur, a recovery certificate under Sub-section (2) of Section 46 of the Act for recovering Rs. 85,667-7-0 and Rs. 79,925-8-0 in respect of the assessment years 1954-55 and 1955-56, respectively. The petitioner filed an appeal against the levy of penalty of Rs. 7,500. The Appellate Assistant Commissioner set aside the levy of penalty observing that the provisional assessment under Section 23B of the Act was bad inasmuch as it was made before the petitioner had filed his return. Realising his mistake the I.T.O. passed on May 14, 1958, two orders which read as follows: "1954-55.

(3.) THE recovery of tax from the petitioner was stayed by an interim order of this court dated March 24, 1959, in an earlier writ petition filed by him, Civil Misc. Writ No. 801 of 1959. THE writ petition was dismissed on September 29, 1961. THE petitioner filed a Special Appeal (Special Appeal No. 650 of 1961) against the order dismissing his writ petition. That appeal was also dismissed on January 31, 1962.