- (1.) THIS is writ petition under article 226 of the Constitution of India.
(2.) THE prayers contained in this writ petition are that a writ of certiorari may be issued quashing the order dated August 25, 1958, rejecting the objection filed by the petitioner in recovery proceedings in respect of the agricultural income-tax amounting to Rs. 659-11-0 and penalty amounting to Rs. 164 and a writ of mandamus may be issued commanding the respondents not to arrest the petitioner or to auction his property for the realisation of the above amounts. The facts of the case may be shortly stated. On October 4, 1955, the petitioner was assessed to agricultural income-tax for the year 1362 F. in the sum of Rs. 659-11-0, under the provisions of section 30 of the U.P. Agricultural Income-tax Act, hereinafter called the Act. The amount of tax was payable in two instalments, the first instalment of Rs. 329-14-0 on November 23, 1955, and the second instalment of an equal amount payable on May 23, 1956. Before, however, anything was paid, the petitioner filed an appeal before the Commissioner, and on December 18, 1955, the Commissioner passed an order staying realisation of the tax. On March 5, 1956, the appeal was dismissed for default of appearance of the petitioner. On February 10, 1958, the assessing authority imposed a penalty of Rs. 164 for default of payment of the two instalments of tax at Rs. 82 each for the two defaults and ordered that the Collector may be requested to realize the total demand amounting to Rs. 823-11-0 as arrears of land revenue. It is stated in the petitioners affidavit that in March, 1958, the Amin came for the realization of tax and penalty, whereupon the petitioner filed objections on June 25, 1958, before the assessing authority. The objections were dismissed by the assessing authority by order dated August 25, 1958. On September 21, 1958, the Amin visited the petitioners house with a warrant for his arrest, whereupon on the 1st October, 1958, this writ petition was filed. The petitioner has relied upon the provisions of sub-section (2) of section 32 in support of his petition. The provision in this sub-section is as follows : No proceedings for the recovery of any sum payable under this Act shall be commenced after the expiration of one year from the date on which the instalment fixed under section 30 falls due or after the expiration of one year from the date on which any appeal relating to such sum has been disposed of.
(3.) IT is urged that the recovery proceedings, being beyond one year of the disposal of the appeal are barred by limitation and are, therefore, incompetent. A counter-affidavit has been filed on behalf of the respondent that information about the dismissal of the appeal was received in the office of the Collector only on January 16, 1958. In support of this statement a copy of the order of the dismissal of the appeal witch its endorsement has been filed as annexure 2" to the counter-affidavit. In that annexure, there is an order by the assessing authority of the same date requiring further action to be taken. It has been stated in the counter-affidavit that as proceedings for realisation of tax had been stayed in appeal by the Additional Commissioner by order dated December 18, 1955, and as information of the dismissal of the appeal was received only on January 16, 1958, it was assumed that the order of stay of proceedings stood discharged only on January 16, 1958. In due course, as already stated above, a penalty was imposed and recovery proceedings initiated under orders of the assessing authority dated January 16, 1958, and February 10, 1958. It is pleaded that from the date of the communication of the order of dismissal of the appeal, the recovery proceedings are within time.;