Manchanda, J. - (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;
"That on the 28th November 1957 the Income-tax Officer Firozabad imposed a further penalty of Rs. 533.00 on petitioner no. 1 under Section 46 (1) of the Income-tax Act. The Income-tax Officer acted without jurisdiction in imposing this penalty a? he had already once imposed a penalty on 2nd March 1957 for default and had forwarded recovery certificate to the Collector on 7th March 1957 under Section 46 (2) of the Income-tax Act."
The learned single Judge observed "that" on this admission alone the petitioners are entitled to a relief in respect of Rs. 533.00. The contention of the learned Standing Counsel for the Department that the admission on facts alone can be binding and not on law was rejected for the reason that the admission made in the counter affidavit was an unqualified one. In this view of the matter, the learned single Judge did not consider the two grounds which the petitioner had sought to challenge the levy of penalties.
In these circumstances, the only question which falls for consideration is, whether the learned single Judge was justified in treating the said admission of the Income-tax Officer as binding and conclusive?

(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.