- (1.) THIS is an application under s. 45 of the Specific Relief Act and also under the Constitution of India for writs in the nature of mandamus, prohibition and certiorari for an order cancelling the notice of demand issued by the respondent under s. 29 of the Indian IT Act and calling upon him to forbear from taking further steps in respect of the said notice of demand and for quashing of the assessment proceedings.
(2.) THE petitioners started carrying on business in co-partnership under the name and style of Ladhuram Taparia on the 28th Feb., 1941, and entered into a written agreement of partnership on the 16th Oct., 1941. THE firm of the petitioners was duly registered under the Indian Partnership Act on the 19th July, 1943. THE petitioner Ladhuram had 8 as, share and the petitioners Ganpat Rai and Bhairodan had 4 as, share and the petitioners Ganpat Rai and Bhairodan had 4 as, share each in the said firm. THE firm was first assessed to income-tax in respect of the asst. yr. 1942-43 and for that purpose it was registered under s. 26A of the Indian IT Act. For the asst. yrs. 1943-44 and 1944-45 registration under s. 26A of the Act was renewed and similar assessments were made. THE last of such assessment was made by the respondent. But in making the assessment for the year 1945-46 the respondent refused to renew the registration of the said firm and assessed the said firm as un-registered firm in its firm name. In so assessing, the respondent added to the total income of the firm as computed by him, the total income assessed by him of five other firms, viz., (1) Jagawarmal Hanuman Buz, (2) Jagannath Harnarain, (3) Ganpat Rai Jorawarmal, (4) Seth Ladhuram Taparia, and (5) Seth Ladhuram Taparia and Co. and the income-tax and super-tax were computed on the aggregate income so found. THE assessment order was made on the 29th March, 1950, and a notice of demand under s. 29 of the Act were served upon the petitioners' firm. THE notice was dated the 30th March, 1950, and required the petitioners to pay a sum of Rs. 8,67,239.10 on or before the 20th April, 1950. It is stated in the petition that out of the above- named five firms four have been duly constituted under four registered deeds of partnership and the said firms have been registered under the Indian Partnership Act. It appears that the respondent has also made five several assessment orders on the 29th March, 1950, in respect of the said five other firms for the same asst. yr. 1945-46 and has issued notices of demand in respect of such assessments calling upon the said firms to pay the amounts mentioned therein by the 20th April, 1950. On the 19th June, 1950, the firm of the petitioners Messrs. Ladhuram Taparia filed an appeal before the AAC under s. 20 of the Act against the assessment order made upon them and also against the order refusing to renew the registration under s. 26A. It is stated in the petitioner that the assessment is without the authority of law and is ultra vires the powers of the respondent. On the 20th April, 1950, the petitioners' firm applied to the respondent for granting them sufficient time to consider the matter and for payment of the legitimate tax but the respondent has not acceded to such request thereby denying justice to the petitioners. In the circumstances the petitioners have moved this Court for the reliefs stated above. Sec. 45 of the Indian IT Act provides that any amount specified as payable in a notice of demand shall be paid within the time at the place and to the person mentioned in the notice or order and any assessee failing so to pay shall be deemed to be in default provided that when the assessee has presented an appeal under s. 30 the ITO may in his discretion treat the assessee as not being in default as long as such appeal is undisposed of. It is contended by Dr. Pal appearing for the petitioners that the character of an appeal under s. 30 of the Act is that the assessment is at once re-opened and it becomes contingent conferring on the appellate authority power to make as it were a new assessment and it is pointed out that the moment an assessee files an appeal he loses all control over the matter and an appeal once filed cannot be withdrawn. Dr. Pal points out that the corresponding sections of the English It Act, namely, s. 136 and s. 137 have similar effects. He relies on the decision of the House of Lords reported in Rex vs. Special CIt (ex parte Elmhirst) (1935) 20 Tax Cas. 381 at 384 and 387 and Lord Simon-Income Tax, Vol 1, paragraph 309, page 201. It is further pointed out by him that under s. 157 of the English Act which is the section corresponding to s. 45 of the Indian Act the payment of the assessed tax is stopped the moment an appeal is filed against the order of assessment and the matter is not left to the discretion of the officer issuing the notice of demand. It is submitted that the discretion conferred upon the ItO under s. 45 of the Indian Act should be exercised in a reasonable and judicious manner and not arbitrarily. It is further submitted that the power or the discretion conferred upon the ItO under s. 45 of the Act can under certain circumstances become coupled with a duty. Reliance is placed on the observations of Cairns, I.C., which are as follows : "They confer a faculty or power and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so": Julius vs. Bishop of Oxford (1880) 5 App. Cas at pp. 222 and 223. The principle so stated in the case of Julius vs. Bishop of Oxford (supra) was quoted with approval and applied by the Judicial Committee in the case of Alcock Ashdown and Co. vs. Chief Revenue Authority, Bombay (1923) 50 IA 227 at p. 235. In this case the Chief Revenue Authority came to the conclusion that the application made before him to state a case and refer it to the High Court was absolutely frivolous and he was of opinion that any reference was unnecessary. Even then the Privy Council observed that inasmuch as a serious question of law was involved it was the duty of the Chief Revenue Authority to state a case and refer it to the High Court in the facts and circumstances of this case. In this case also a discretion was conferred on the Revenue Authority but it was pointed out that if in a proper case he did not exercise that power he could be compelled to do so by an order under s. 45 of the Specific Relief Act.
(3.) IN the present case, the petitioners' firm submitted a return for Rs. 33,105 but they were assessed at a sum of Rs. 8,67,239 which is undoubtedly an unusually heavy sum. There was a substantial question of fact as to the constitution of the petitioners' firm and the five other aforesaid firms involved in the matter. The ITO has also made protective assessment in respect of the five other firms in order to avoid any question of limitation in case the main assessment made by him was set aside by the appellate authority. The interest of the Revenue of the Government had been fully safeguarded by such protective assessment. There was also a serious question of law involved as to whether the ITO had jurisdiction or authority to assess an imaginary firm without a proper return being submitted by such firm and without properly initiating proceedings for assessment under the Act in respect of such firm. Moreover payment of such a heavy sum within the time fixed by the notice of demand was not an easy matter and might have the effect of completely ruining the business of the petitioners' firm and of those five other firms. It cannot be said with any definiteness that there is no substance in the appeal or that the appeal is bound to fail. The respondent himself was satisfied in the past with the constitution of these firms and treated these as separate entities and made assessments on the basis. The respondent himself is not sure that his assessment on the basis that all the six alleged firms are but one firm will be upheld by the appellate authority and so he has taken care to make alternative protective assessments. IN the circumstances it appears to me that there is a duty on the respondent to refrain from enforcing payment of the tax under the notice of demand and to grant extension of time and stay their hands till the appeal is disposed of by the appellate authority. It was contended by the learned Advocate-General that the words in s. 45 are not merely "may" but "may in his discretion" and therefore such a discretionary power cannot be under any circumstances covered into a duty. I do not think that there is any force in this contention. No authority in support of this contention has been cited by the Advocate-General. On the other hand, words such as "may, if they think fit" has been held to have a compulsory force.;