- (1.) This appeal has been filed with the special leave of this Court against a decision of the High Court of Mysore, by which it dismissed in limine an application by the appellants under Art. 226 of the Constitution for a writ of prohibition or some other appropriate writ against the Income Tax Officer, Bellari, Special Circle, Bangalore.
(2.) The facts of the cases are as follows. For the assessment year 1948-49, the appellants failed to file a return within the prescribed time and the Income-tax Officer, acting under S. 28(1) (a) of the Indian Income Tax Act, issued a notice to them to show cause why penalty should not be imposed. In answer to this notice, the appellants filed a written reply and the Income Tax Officer proceeded to levy a penalty of Rs. 16,000/-, without affording a hearing to them as required by the third sub-section of S. 28 of the Income Tax Act. The matter was taken up in appeal before the Appellate Assistant Commissioner of Income-tax, who, pointing out that an opportunity of being heard was not granted to the appellants, held that the order was defective. He therefore set aside that order and directed the refund of the penalty if it had been recovered.
(3.) On receipt of the order, the Income Tax Officer issued a further notice calling upon the appellants to appear before him, so that they might be given an opportunity of being heard. He also intimated that if no appearance was made, then he would proceed to determine the question of penalty, taking into consideration only the written statement which had been filed earlier. Before, however, the Income Tax Officer could decide the case, the appellants filed a petition under Art. 226 of the Constitution for the issuance of the writs mentioned above. This petition was dismissed in limine by the High Court holding that the contention raised by the appellant may perhaps be raised before the Income-tax authorities. The appellants thereupon applied for special leave to this Court and leave having been granted, this matter comes up before us.;