- (1.) THIS is a writ petition under article 226 of the Constitution.
(2.) THE prayers contained in the petition are that a writ of certiorari may be issued quashing the orders dated February 24, 1956, March 7, 1956, February 15, 1956, imposing penalty in respect of the assessment years 1944-45, 1946-47 and 1950-51 and further that a writ of mandamus may be issued restraining the respondents from realizing the amount of penalty imposed under the said orders. The material facts are that Ram Bharose, father of the petitioner, was assessed to income-tax for the assessment year 1944-45 by assessment order dated March 28, 1949. Ram Bharose had paid some amount during his lifetime, but a balance of Rs. 17,867 remained to be paid. For the assessment years 1946-47 and 1950-51, the petitioner was assessed under section 24B, on the income of his father, during those two years, were Rs. 11,803-15-0 and Rs. 8,494 respectively. Appeals were filed against the assessment orders in respect of the three years and the tax liability was reduced as a result of those appeals. The amounts of tax, which remained due and payable were Rs. 7,512-9-0, Rs. 8,941-0 and Rs. 8,498 respectively, making total of Rs. 24,951-14-0. On January 25, 1956, a notice was issued to the petitioner to pay the arrears by January 31, 1956. It is stated in paragraph 10 of the affidavit that the petitioners father was a partner with his kith and kin in certain firms, who made a request to the Income-tax Officers. By the impugned orders dated February 24, 1956, March 7,1956, and February 15, 1956, penalties of Rs. 2,000, Rs, 3,000 and Rs. 1,000 were imposed under section 46(1) in respect of the years 1944-45, 1946-47 and 1950-51 respectively. The petitioner filed appeals against the penalty orders, but as the taxes outstanding in respect of which the penalties were imposed had not been paid till the date of the filling of the appeals, the appeals were dismissed as not being entertainable by a consolidated order of the Appeals Assistant Commissioner dated February 4, 1957. Thereafter, the petitioner filed appeals before the Income-tax Appellate Tribunal but those appeals were also dismissed by a consolidated order dated July 26, 1957, as being not maintainable. On October 21, 1957, this writ petition was filed in this court. No counter-affidavit has been filed in the writ petition on behalf of the income-tax department.
(3.) TWO points have been argued before me by the learned counsel for the petitioner. 1. That the penalty orders having been passed against a dead person were a nullity; and 2. That having regard to the provisions of section 24B, no penalty order can be passed against a legal representative in respect of a tax demand against a deceased. So that as the first point is concerned, it is completely devoid of any substance. The dates on which the impugned penalty orders were passed have been given above. These orders were passed, not against the deceased, but against the petitioner, who was very much alive, Accordingly, the orders cannot be said to have been passed against a dead person. Its follows, that the orders are not a nullity on this ground.;