Govinda Bhat, J.
1. This matter arises under the Mysore Agricultural Income-tax Act, 1957, hereinafter called 'the Act'. The petitioner is an assessee under the Act. For the assessment year 1966-67 he did not file his return of income despite notice by the Agricultural Income-tax Officer, Dharwar (respondent No. 1). Thereafter, the first respondent proposed to make a best of judgment assessment and for that purpose issued a proposition notice wherein he gave the particulars of the crops grown by the petitioner during the relevant accounting period. To the proposition notice also, the petitioner did not file any objections. On November 16, 1968, a pleader by name, M.H. Chouta, appeared before the first respondent and produced his vakalath and made his application for an adjournment on the ground that the assessee had not obtained the necessary documents till then. That request was rejected. However, the case was posted for hearing with regard to the making of assessment under section 19(4) of the Act, on November 29, 1968, at Lakshmeshwar camp. The petitioner was served with the notice of hearing on November 22, 1968. Yet he did not appear nor did he communicate his inability to attend the hearing. Since nobody appeared on November 29, 1968, the assessing authority adjourned the matter to December 24, 1968, at Dharwar. The petitioner made no attempts to find out the course of the proceedings before the first respondent despite the fact that he had engaged a lawyer for the purpose of representing him in the assessment proceedings. On December 24, 1968, since the petitioner had remained absent, the first respondent made an order of assessment on the basis of the particulars furnished in the proposition notice. The assessment order was made on December 28, 1968, by which a tax of Rs. 970.92 was levied. Thereafter, an application purported to be one under section 21 of the Act was made for cancellation of the assessment on the grounds mentioned in the said application. The assessing authority rejected that application by his order dated July 21, 1969, as he was not satisfied that the assessee was prevented by sufficient cause from making his return required by section 18 or that he had not a reasonable opportunity to comply or prevented by sufficient cause from complying with the terms of the notice issued under the Act. On the same day, the first respondent made an order under section 42(2) of the Act levying a penalty of Rs. 242.50. Aggrieved by the said order, the petitioner has preferred the above writ petition since he has no remedy of any appeal provided under the Act.
2. The order of penalty dated July 21, 1969, in our opinion, cannot be sustained. The demand notice under section 31 was served on the petitioner on January 15, 1969. The petitioner made an application under section 21 for cancellation of the assessment on January 23, 1969, and that application was pending till July 21, 1969. Under section 42 of the Act, the Agricultural Income-tax Officer has the discretion to impose penalty where an assessee is in default in paying the agricultural income-tax. When the Act provides for cancellation of the assessment made under section 19(4) and where such an application has been made and the same is kept pending, it will not be a proper exercise of discretion on the part of the Agricultural Income-tax Officer to impose penalty under section 42, if the assessee is in default in making payment of the agricultural income-tax during the period of the pendency of the application under section 21. Therefore, the levy of penalty cannot be sustained and is liable to be quashed.
3. The order of assessment made under section 19(4) dated December 28, 1968, has been challenged on the ground that it is arbitrary and that the petitioner was not afforded the reasonable opportunity of being heard. Having regard to the facts of the case, which we have set out earlier, there is no substance in either of these contentions. Even before us, in these proceedings, the correctness of the acreage of the crops shown in the proposition notice has not been challenged as incorrect or inaccurate. The yield per acre and the rate of the commodities have also been shown in the proposition notice on the basis of which the gross income has been computed. The records show that the yield has been computed on the basis of the average yield notified by the Assistant Commissioner under the Mysore Land Reforms Act. The petitioner has not shown nor alleged that the yield as computed by the Agricultural income-tax Officer is in excess of the notified yield. So also, he has not shown that the rate for each commodity is in excess of the prices notified under the Mysore Land Reforms Act.
4. No other question has been urged in this writ petition.
5. For the reasons stated above, we quash the order of penalty dated July 21, 1969, and direct the assessing authority to refund the amount of penalty, if already paid. In other respects the challenge made to the assessment order fails. It is ordered accordingly. No costs.