ROSHAN LAL KUTHIALA Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THIS is a petition under articles 226 and 227 of the Constitution filed by Roshan Lal Kuthiala challenging the legality of a notice dated January 30, 1963, issued by the Income-tax Officer for the payment of advance tax under the provisions of section 210 of the Income-tax Act, 1961.

(2.) IN the return filed by the respondent, two preliminary objections have been raised. Firstly, it was stated that the petition was misconceived. The payment of advance tax on income during the relevant year of account was the statutory liability of an assessee and failure to pay the same visited him with statutory consequences. The respondent had merely quantified the amounts payable by the assessee with reference to the last completed assessment. If the assessee thought that that figure was higher than what was justified on his actual income in the relevant accounting period, he had the statutory remedy of giving his own estimates and making payment of advance tax for the period accordingly. The petitioner had, therefore, effective remedies open to him under the INcome-tax Act. Secondly, it was mentioned that the object of the writ petition seemed to be to put off the petitioners statutory liability. A valid assessment having been completed, a lawful demand had been made by the respondent. The petitioner had his remedies under the INcome-tax Act against the assessment. The remedy resorted to by the petitioner by invoking the jurisdiction of this court on the extraordinary side was not open to him. On the merits, it was stated that the total income of the petitioner was assessed at Rs. 3,44,668 and not Rs. 3,13,630, as mentioned by him. It was further mentioned that the advance tax for the period in question was demanded by the respondent by an earlier order dated August 18, 1962, as well. That order was subsequently revised on January 30, 1963, as a result of the completion of the assessment for the year 1958-59. It was admitted that the petitioner had made representations to the Commissioner of INcome-tax, but the latter had declined to interfere in the matter. It was asserted that the fresh notice of demand issued by the respondent on January 30, 1963, was perfectly bona fide, legal and within jurisdiction and did not in any way infringe any rights of the petitioner, fundamental or otherwise.

(3.) IN order to appreciate the third contention of the learned counsel for the petitioner, it is necessary to give some further facts of the presents case. The present writ petition was filed on February 28, 1963, challenging the validity of the revised advance tax notice dated January 30, 1963. On December 31, 1963, the petitioner submitted his return of income for the financial year 1962-63, the petitioner submitted his return of income for the financial year 1962-63 (assessment year 1963-64). Thereupon, the INcome-tax Officer made a provisional assessment on the basis of this return on January 15, 1964. Thereafter, on April 3, 1964, the petitioner filed Civil Misc. No. 947 of 1964 in the present writ petition seeking permission to raise the additional ground, which has given rise to the third contention under discussion. IN the first place, learned counsel for the petitioner has not been able to cite any provision of law under the INcome-tax Act or any decision thereunder to the effect that, after the provisional assessment for a particular year has been made, no advance tax can be recovered for that year and the notice issued for the recovery of the same becomes infructuous. Secondly, it is not understandable as to how the making of the provisional assessment ipso facto invalidates the advance tax notice, which is the only point with which we are concerned in the third contention. The advance tax notice is invariably issued furring the financial year, while the provisional assessment is made during the next year, which is called the assessment year, after the assessee has submitted his return. An assessee is, therefore, bound to pay the advance tax during the currency of the financial year, otherwise he becomes an assessee in default within the meaning of section 218 and is liable to penalty under section 221 of the Act. IN the present case, the petitioner had become an assessee in default long before the provisional assessment was made on January 15, 1964. There is thus no force in this contention also.