D.M. Chandrashekhar, J. - (1.) IN this petition under Article 226 of the Constitution, the petitioner has prayed for issue of a writ for quashing the proceedings for recovery of income-tax demanded from him for the assessment years 1954-55 and 1955-56.
(2.) MOST of the material facts are not in dispute and they may be stated. For the assessment years 1954-55 and 1955-56 the Income-tax Officer, Circle 1(10), Kanpur (hereinafter referred to as "the I.T.O."), purported to make provisional assessments under Section 23B of the Indian Income-tax Act, 1922 (hereinafter referred to as "the Act"). Demand notices were issued to the petitioner in pursuance of such provisional assessments. As the petitioner defaulted in paying the amounts so demanded, the I.T.O. levied two sums of penalty of Rs. 5,000 and Rs. 7,500 on January 27, 1956, and March 5, 1956, respectively, for those two years. On March 15, 1956, the I.T.O. also issued to the Collector, Kanpur, a recovery certificate under Sub-section (2) of Section 46 of the Act for recovering Rs. 85,667-7-0 and Rs. 79,925-8-0 in respect of the assessment years 1954-55 and 1955-56, respectively. The petitioner filed an appeal against the levy of penalty of Rs. 7,500. The Appellate Assistant Commissioner set aside the levy of penalty observing that the provisional assessment under Section 23B of the Act was bad inasmuch as it was made before the petitioner had filed his return. Realising his mistake the I.T.O. passed on May 14, 1958, two orders which read as follows: "1954-55. 5-58. Earlier 23B asstt. as on 1-7-55 is cancelled under Section 35 in the light of AAC's observations and CIT's direction. Complete fresh 23B asstt. issue N/D Ch. 1955-56 5-58. Earlier 23B asstt. as on 1-7-55 is cancelled under Section 35, vide 54-55. Complete 23B asstt. afresh issue N/D Ch." After the aforesaid two orders were made, neither fresh demand notices under Section 29 nor a fresh recovery certificate under Section 46(2) of the Act were issued by the I.T.O. Subsequently, on February 18, 1959, the I.T.O. made orders of final assessment for the years 1954-55 and 1955-56 under Section 23 of the Act. Thereafter, he issued to the petitioner fresh demand notices under Section 29 of the Act in pursuance of those final orders of assessment, but did not issue any fresh recovery certificate under Section 46(2) in pursuance of those demand notices. He merely intimated the tax recovery authorities that the arrears of tax had been reduced to Rs. 1,34,216 (Rs. 71,108-29 for the year 1954-55 and Rs. 63,108-38 for the year 1955-56 after adjusting Rs. 27,679 paid by the petitioner as advance tax).
(3.) THE recovery of tax from the petitioner was stayed by an interim order of this court dated March 24, 1959, in an earlier writ petition filed by him, Civil Misc. Writ No. 801 of 1959. THE writ petition was dismissed on September 29, 1961. THE petitioner filed a Special Appeal (Special Appeal No. 650 of 1961) against the order dismissing his writ petition. That appeal was also dismissed on January 31, 1962. On January 18, 1972, the I.T.O., Collection I, Kanpur, to whom the work of collection stood transferred, addressed a letter to the Tax Recovery Officer, Kanpur, who had taken over the recovery proceedings pending before the Collector, intimating the Tax Recovery Officer that the amount of arrears of tax outstanding against the petitioner was Rs. 1,34,216. On September 12, 1972, the Tax Recovery Officer, Kanpur, sent a notice to the petitioner calling upon him to pay within 15 days of the service of notice, Rs. 1,65,592.94 and intimating that in case of default, steps would be taken to realise that amount in accordance with the Second Schedule to the Income-tax Act, 1961. As the petitioner did not pay any amount in pursuance of the aforesaid notice, the Tax Recovery Officer proceeded to attach the petitioner's immovable properties. It is at this stage that the petitioner presented this petition.;