INCOME TAX OFFICER Vs. SHAMBHOO DAYAL OM PRAKASH AND CO FEROZABAD

JUDGEMENT

(1.) THIS is a special appeal directed against the judgment of Brijlal Gupta J. dated the 3rd November 1961 whereby the writ petition filed by the respondent was partly allowed and a writ of Certiorari was issued quashing the orders imposing penalty under Section 46 (1) of the Income-tax Act, 1922 (hereinafter referred to as the Act) in the sums of Rupees 533.00 and Rupees 450.00 and a writ of Mandamus restraining the Income-tax Officer from realising the said amounts.

(2.) THE sole ground on which the orders levying penalties in the sum of Rs. 533 and Rs. 450.00 were quashed was because of an admission said to have been made by the Income-tax Officer in his counter affidavit, "that the contents of paragraph 14 of the said affidavit are admitted". Paragraph 14 of the affidavit was as follows;

(3.) THE said paragraph 14 of the affidavit sets out some facts and then draws a legal inference of law therefrom. It is stated that penalty was levied on the 2nd March 1957 for default which was after the recovery certificate had been forwarded to the Collector on the 27th March 1957 under Section 46 (2) of the Act. From this the conclusion of law according to the deponent was that the Income-tax Officer had acted without jurisdiction in imposing a penalty. In the counter affidavit, when it was stated that paragraph 14 is admitted, that could only mean that the facts stated therein are admitted but not the legal inference which according to the petitioner, flowed from those facts.