KAN SINGH, J. - (1.) THIS is writ petition under article 226 of the Constitution by which the validity of a notice, issued by the Income -tax Officer, 'A' Ward, Jodhpur, on April 19, 1963, under section 274 read with section 271 of the Income -tax Act, 1961, to the petitioners -assessee is challenged.
(2.) PETITIONER No. 1 - Messrs. Indra and Company - is a registered firm which has Jiwanlal and Murlidhar as its partners. Petitioners are assessee in 'A' Ward of the Income -tax department, Jodhpur; their accounting year commences on 'Deepawali' every year. Before the commencement of the Income -tax Act, 1961, they were served with a notice under section 22(2) of the Income -tax Act, hereinafter to be referred as the 'old Act', on May 30, 1961, for the assessment year 1961 -62. The petitioners, however, did not file the returns in compliance with the notice till the Income -tax Act, 1961, came into force on April 1, 1962. The 1961 Act will, hereinafter, be referred as the 'new Act'. Eventually, they filed their returns on December 28, 1962. The Income -tax Officer, 'A' Ward, completed the assessment on April 19, 1963, in accordance with the provisions of the new Act, but while doing so, he issued a notice to the petitioners under section 274 read with section 271 of the new Act, to show cause why penalty be not imposed on them for their failure, to submit the returns in time in pursuance of the notice dated May 30, 1961, issued under the old Act. On receipt of the notice the petitioners made a representation to the Income -tax Officer wherein they pointed out their difficulties in submission of their returns in due time, and also raised a legal objection that it was not competent to the Income -tax Officer to invoke the provisions of the new Act for initiating any action for the imposition of the penalty under the new Act. But, as this representation was not accepted, they have filed the present writ petition. It is urged by the petitioners that, as no notice under section 139(2) of the new Act was issued, the provisions of section 271(1) of the new Act could not be resorted to. If at all the Income -tax Officers wanted to initiate any action by way of penalty he could do so only under the provisions of the old Act. Then the vires of the provisions of section 297(2)(g) of the new Act are attracted on the ground that the penalty provisions contained their have been made applicable to defaults, if any, committed under the old Act and as more onerous penalty can be inflicted under the provisions of the new Act, the same will result infringement of the fundamental right granted under article 20(1) of the Constitution of India. Provisions of section 297(2)(g) of the new Act are further challenged on the ground that they result in discriminate treatment at the hands of the Income -tax Officer to the various assessee who may be similarly circumstance. It is argued that the Income -tax Officer might delay the assessment in the case of one assessee and it may be finalised after the coming in to force of the new Act, whereas the return filed by the other assessee similarly situated might have been finalised before the operation of the new Act at the sweet will of the Income -tax Officer. While the assessee whose assessments have been finalised before the coming into force of the new Act, the assessee whose assessments could not be finalised simply on account of the inaction of the Income -tax Officer would be subjected to more onerous penalties under the new Act. It is, therefore, argued that this discrimination being without any reasonable basis is violative of article 14 of the Constitution.
(3.) THE writ petition has been opposed on behalf of the respondents.;