Dwivedi, J. - (1.) THE facts giving rise to this appeal are these:-- There was a business firm known as Niranjan Lal Ghanshyam Das. The firm was doing business at Daranagar in the District of Allahabad. It had five partners. The appellant was one of them. It was dissolved on April 11, 1948.
(2.) THE firm was assessed to income tax for the assessment year 1948-49 on February 2, 1950. On January 17 1951 a penalty of Rs. 6,000 was imposed on the firm under Section 28 of the Income Tax Act 1922 (hereinbelow called the Act). The penalty was not paid, and on November 12, 1961 the Income Tax Officer imposed a penalty of Rs. 600 for default in payment of the penalty imposed under Section 28. The appellant was then asked to pay the amount of the second penalty He protested and filed a writ petition in this Court. The petition was dismissed on merits by a learned single Judge; hence this appeal. Counsel for the appellant has challenged the validity of the imposition of a penalty on a penalty. Counsel for the respondent seeks to justify the imposition with the aid of Section 46(1) and Section 47 of the Act Section 46(1) provides: "When an assessee is in default in making a payment of income tax, the Income Tax Officer may in his discretion direct that, in addition to the amount of the arrears, a sum not exceeding that amount shall be recovered from the assessee by way of penalty" Section 47 partinently provides: "any sum imposed by way of penalty under the provisions of Sub-section (2) of Section 25, sec. 28, Sub-section (6) of sec. 44E, Sub-section (5) of Section 44F or Sub-section (1) of Section 46... shall be recovered in the manner provided in this Chapter for the recovery of arrears of tax."
(3.) TWO questions have been debated before us: (1) Can the word "income tax" la Sub-section (1) of Section 49 be read as including 'penalty' also? (2) Is penalty a mode of recovering the arrears? We shall discuss the first question first.;