1. This application under Article 226 of the Constitution of India is directed originally against an order of assessment and notice of demand under Section 23 of the Assam Agricultural Income-tax Act, 1939, briefly the Act, dated November 26, 1965, for the assessment year 1955-56
and an order of penalty of Rs. 10,000, demanded by notice dated September 10, 1966.
2. Mr. Bhattacharjee, the learned counsel for the petitioner, now confines his submission to the relief with regard to the order of penalty dated September 10, 1966. We are, therefore, not concerned in this proceeding with the assessment order. The order of penalty was imposed under Section 36(1) of the Act before its amendment by Assam Act IX of 1967. Section 36(1) of the Act, at the material time, reads as follows :
' 36. (1) When an assessee is in default in making a payment of agricultural income-tax, the Superintendent of Taxes or the Agricultural Income-tax Officer may, in his discretion, direct that, in addition to the amount of arrears, a sum not exceeding that amount shall be recovered from the assessee by way of penalty.'
3. It is now admitted by the learned Senior Government Advocate that no notice was given to the assessee before imposing the penalty under Section 36(1). Section 36 is a penal provision and a discretion is given to the officer to impose the penalty. A penal provision like this cannot be enforced without hearing the affected assessee. Although there is no express provision in the section itself or in any other provision of the Act with regard to the procedure of hearing the matter under Section 36, the very nature of the proceeding postulates that the principles of natural justice have got to be observed. Since no reasonable opportunity was given to the assessee before passing the impugned order of penalty, the order is invalid for violation of the rules of natural justice. The impugned order of the Agricultural Income-tax Officer is, therefore, void, and the same is hereby quashed.
4. The petitioner made a revision application before the Commissioner against that order under Section 27(2) of the Act. The Commissioner, however, gave a hearing to the petitioner but his order does not seem to have dealt with the question of violation of the principles of natural justice in passing the original order of penalty. Since we have quashed the order of the Agricultural Income-tax Officer, the order of the Commissioner also fails.
5. The application is accordingly allowed and, in the result, the impugned order of penalty is quashed. It will, however, be open to the authority to proceed under Section 36(1) of the Act in accordance with law if it so chooses to do. There will, however, be no order as to costs.
R.S. Bindra, J.
6. I agree.