MALLADI SITARAMA SASTRI Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THIS petition under article 226 seeks a mandamus against the Income-tax Officer, Vijayawada, in order to prevent the writ petitioner being declared a defaulter and the tax of Rs. 4,523-9-0 from being collected. The facts preceding the write petition are that the petitioner was served with a notice under section 22(2) of the Income-tax Act for submitting his return for 1946-47, which was done, showing his income to be Rs. 832-12-7. On November 11, 1954, a notice was again issued under section 34 of the Act, alleging that the year ending March 31, 1947, had escaped assessment and the petitioner applied to the Income-tax Officer to transfer his file to Guntur, as he was residing there, but the request was refused. Account were asked to be produced on March 24, 1955, on which date all the accounts along with the audit reports were produced and an adjournment was prayed. On its being refused, the petitioner prepared his returns at 5-30 p.m., but the concerned officer refused to receive them and on the same day assessed the petitioner to tax of Rs. 4,523-9-0. An appeal against the order has been filed and has not yet been decided. During the tendency of the appeal the petitioner began on September 21, 1955, the proceeding under section 27 of the Income-tax Act for re-opening the assessment before the Income-tax Officer, Vijayawada, and that has been concluded against him on July 11, 1957. An appeal against this order also has been filed before the Appellate Assistant Commissioner on August 8, 1957, and has not yet been decided.

(2.) THERE is another set of facts which immediately led to the presentation of the writ petition. On April 9, 1955, the petitioner had applied to the Income-tax Officer not to treat him as a defaulter, as he had filed the appeal against the main assessment order. The application was made under section 45 of the Income-tax Act and the petitioner while seeking the adjournment gave an undertaking not to alienate his properties. At that time the application under section 27 of the Income-tax Act had also been filed before the Income-tax Officer. On May 23, 1956, the Officer ordered adjournment till the disposal by him of the proceeding under section 27 and after the disposal the assessee had been called upon to pay the tax before September 28, 1957. THEREupon, the writ petitioner having filed the other appeal against the order by the income-tax Officer under section 27 again requested him not to declare him a defaulter. This was made under section 45 of the Act. The petitioner further informed the Income-tax Officer that he was ready to offer security for the tax amount. On August 23, 1957, the Officer regretted his inability to entertain any request on behalf of the petitioner and asked for the payment of the tax. The relevant extract from the aforesaid order reads as follows :

(3.) VISWANATHA Sastri, J., also states the same rules in the following words :