INCOME TAX OFFICER Vs. BISHESHWAR LAL

JUDGEMENT

(1.) THIS special appeal is directed against the order of Brijlal Gupta J., dated July 19, 1962, by which he allowed Civil Miscellaneous Writ Petition No. 325 of 1962, and issued a direction to the income-tax authorities not to impose a penalty on the petitioner, Risheshwar Lal, in respect of the assessment for the year 1943-1944.

(2.) THE assessment in question was completed on June 24, 1944, and on the same date a notice under Section 28 of the Income-tax Act of 1922 was issued, calling upon the assessee to show cause why a penalty should not be imposed upon him for concealment of income in respect of his partnership firm. THE petitioner (the present respondent) sent a reply to this notice on October 12, 1944, after which nothing was done by the department for 12 years. THEn on April 16, 1956, another notice was issued to Bisheshwar Lal under Section 28 of the Act, to which he again sent a reply on June 11, 1956, pointing out, inter alia, that the firm in question had been dissolved in the meantime in the year 1948. Again nothing further was done for another three years, but on September 7, 1959, a third notice was issued requiring the petitioner to show cause against the imposition of the penalty, followed by a fourth notice on February 5, 1960, and a fifth on August 10, 1961. Eventually, the petitioner having failed to get any relief from the income-tax authorities, filed the writ petition in January, 1962.

(3.) SIMILAR is the case with the plea of alternative remedy, Mr. Gopal Behari suggest that the petitioner should have allowed the Income-tax Officer to impose the penalty and should then have gone up in appeal, as provided under the Act. But, in the peculiar circumstances of this case, we feel that the petitioner was justified in preferring to adopt the more efficacious remedy of coming to this court with a writ petition. We note, moreover, that even despite the existence of the alternative remedy, the learned single judge has seen fit to issue the writ; and again we are reluctant to interfere in special appeal with the single judge's exercise of discretion in such matters.