P. Chandra Reddy, C.J.
1. The petitioner seeks the issuance of a writ of Mandamus directing the Income Tax Officer, Eluru end the Collector, West Godavari District to refrain from taking any further proceedings in pursuance of the order of the first respondent for collection of revenue in a sum of Rs. 20,000/- for the year 1943-44 as also the penalty for the year 1944-45.
2. The petitioner, who was the kartha of a Hindu undivided family was assessed for the accounting year ending with 4-4-1943 on a total income of Rs. 1,22,915/-. For the next year, i.e., for 1944-45, the assessable income was fixed at Rs. 46,951 /- and tie was directed to pay taxes of Rs. 53,628-12-0 and Rs. 15,194-7-0 for the years 1943-44 and 1944-45 respectively. The assessment was made on 30-3-1946 and the assessee was given some time for payment of the tax.
The tax seems to have been paid within the prescribed time and there is no controversy regarding that matter now. What happened was that a week before the final order of assessment was made It came to the knowledge of the Income Tax Officer concerned that the assessee had concealed some part of his income. This has led to his starting proceedings under Section 28 of the Indian Income Tax Act (hereinafter referred to as the Act). He called upon the assessee to show cause either in writing or in person as to why penalty should not be levied for the reasons stated in the notice.
Ultimately, penalties to the tune of Rs. 20,000/-and Rs. 4,000/- for the years 1943-44 and 1944-45 respectively were levied. The failure to pay these amounts had resulted in the attachment being made of the properties belonging to the petitioner. It is to quash these imposts that the jurisdiction of this court under Article 228 of the Constitution is invoked. Pending disposal of the writ petitions, the assessee died with the result that his legal representatives have been brought on record.
3. In these writ petitions, four contentions are urged; namely, (1) that Section 28 of the Indian Income Tax Act which enables the officer concerned to levy the penalty for concealment of particulars of income is ultra vires: (2) that the impost is invalid for the reason that the terms of Section 28(3) of the Income Tax Act were not complied with; (3) that the penalty was not levied within a reasonable time, the Income Tax-Officer taking as long as nine years to do it; and' (4) that the penalties could not be collected from the legal representatives of the deceased assessee. We will take up the contentions in seriatim.
4. Section 28 of the Indian Income Tax Act is attacked on the ground that it violates the principle of equal protection of laws embodied in Article 14 o the Constitution. This is how the point is elaborated. Section 28 contemplates the imposition of fine for failure to do certain things enumerated therein. The-same omissions and commissions constitute 'offences' under Sections 51 and 52 of the Act. It is open to the Income Tax Officer to resort either to Section 28 or to Sections 51 and 52. The Act does not lay down any guiding principles or prescribe any standards for choosing the one or the other of the two courses open to him with regard to any particular assessee.
There is, therefore, ample scope for an Income Tax Officer to apply these provisions with an uneven hand, thereby enabling him to exercise discrimination as amongst the various assessees. Since the Act has left to the sweet will and pleasure of an officer of the Department to apply one set of proceedings to one assessee and the other set of proceedings to another, any provision of law which has this effect should be struck down as constituting an infraction of the Fundamental Rights guaranteed to the citizens under the Constitution.
5. Since the controversy centres round the provisions of Sections 28, 51 and 52 of the Act, it is useful to extract them here, in so far as they are relevant.
'Section 28(1) If the Income Tax Officer, the appellate Assistant Commissioner or the Appellate Tribunal, in the course of any proceedings under this Act, is satisfied that any person-
(a) has without reasonable cause failed to furnish the return of his total income which he was required' to furnish by notice given under Sub-section (1) or Sub-section (2) of Section 22 or Section 34 or has without reasonable cause failed to furnish it within the time allowed and in the manner required by such notice, or
(b) has without reasonable cause failed to comply with a notice under Sub-section (4) of Section 22 or Sub-section (2) of Section 23 or
(c) has concealed the particulars of his income or deliberately furnished inaccurate particulars of such income, he or it may direct that such person shall pay by way of penalty, in the case referred to in clause (a), in addition to the amount of the income tax and Super Tax, if any, payable by him, a sum not exceeding one and half time that amount, and in the cases referred to in Clauses (b) and (c), in addition to any tax payable by him, a sum not exceeding one and a half time the amount of the income-tax and super tax, if any, which would have been avoided if the income as returned by such person has been accepted as the correct income:
4. No prosecution for an offence against this Act shall be instituted in respect of the same facts on which a penalty has been imposed under this Section.
6. The Income-Tax Officer shall not impose any penalty under this section without the previous approval of the inspecting Assistant Commissioner. Section 51:
If a person fails without reasonable cause of excuse
(a) to deduct and pay tax as required by Section 18 or under Sub-section (5) of Section 46;
(b) to furnish a certificate required by Sub-section (9) of Section 18 or by Section 20 to be furnished;
(c) to furnish in due time any of the returns mentioned in Section 19A, Section 20A, Section 21, Subsection 2 of Section 22 or Section 88;
(d) to produce, or cause to be produced, on or before the date mentioned in any notice under Subsection (4) of Section 22, such accounts and documents as are referred to in the notice;
(e) to grant inspection or allow copies to be taken in accordance with the provisions of Section 39; he shall, on conviction before a Magistrate, be punishable with fine which may extend to ten rupees for every day during which the default continues. Section 52: If a person makes a statement in a verification mentioned in Section 19A or Section 20A or Section 21 or Section 22 or Sub-section (2) of Section 26A or Sub-section (3) of Section 30 or Sub-section (3) of Section 33 which is false, and which he either knows or believes to be false, or does not believe to be true, he shall be punishable, on conviction before a Magistrate, with simple imprisonment which may extend to six months, or with fine which may extend to one thousand rupees, or with both.'
The question for consideration is, do these provisions of law enable an Income Tax Officer to discriminate as amongst different assessees? We are not much impressed with the argument of the learned counsel for the petitioner on this point. We (lo not think that the doctrine of 'equal protection of laws' is in any way infringed by the material provisions of the income Tax Act. They do not leave any unfettered discretion to deal with persons similarly situated in a similar fashion. It is to be borne in mind that these two sets of provisions are designed to achieve two distinct objects.
The aim and object of Section 28 is to make tax evasion and concealment thereof unprofitable and unremunerative, while that of Sections 51 and 52 is the vindication of public justice. While the one aims at punishing the culprit and vindicating public justice, the object of the other is to protect the revenue and to re-imburse the Government for the expenditure involved in the investigation of the loss resulting from the fraud of the assessees. Their fields of operation also seem to he different except with regard to one or two matters. It is only with regard to Sub-sections (2) and (4) of Section 28 that there is some Overlapping.
Therefore, these provisions are not mutually exclusive. A person who had been subject to penalty under Section 28 cannot escape prosecution under Section 51. It is true that Section 28(4) says that a person on whom penalty has been imposed will not be prosecuted. But this is a statutory concession and does not really bear on the question whether one excludes the other. These two kinds of sanctions appear to be a feature of several of the fiscal enactments. The idea in enacting these provisions seems to be to deter taxpayers from resorting to fraudulent practices and for the realisation of taxes as expeditiously as possible.
6. It is pointed out in Simon's Tax (Vol I) page 285 thus:
'The Income-Tax Acts impose pecuniary penalties (1) on taxpayers for failure to make correct returns, declarations and statements required by the Acts, and for making false claims for reliefs which are authorised by the Acts (2) on officers of the Revenue who are guilty of a dereliction in the execution of their duties, and (3) on other persons in certain circumstances.
In addition breaches of the provisions of the Act may amount to criminal offences, as explained in Division No. 15'.
To a like effect is a passage in Halsbury's Laws of England (Hailsham's edition Vol 17 page 397, paras 823 and 826).
7. There is another consideration which would furnish an answer to the argument of the learned counsel for the petitioner. It is plain from Section 28(1) (a) of the Act that the power to levy penalties is vested not only in the Income-tax Officer but in the-Appellate Assistant Commissioner or the Appellate Tribunal as well. Unlike the Income-tax Officer who is required by Sub-section (6) of Section 28 to obtain the previous approval of the Inspecting Assistant Commissioner before an impost is made under the section, they are entitled to make levies without any reference to the Inspecting Assistant Commissioner.
The Inspecting Assistant Commissioner could think resorting to Section 51 or 52 of the Act only where the fraudulent acts of an assessee arc brought to his notice. This happens when the Income-tax Officer seeks to invoke Section 28. That being the situation, there is no question of criminal proceedings being launched against the assessee when the concealment or other acts of assessees which might come within the purview of Section 28 or Sections 51 and 52, come to the notice of either the Appellate Assistant Commissioner or the Appellate Tribunal.
Consequently, the alternative of the starting of criminal proceedings does not arise in regard to the imposts by them. The resulting position is, if the argument of the learned counsel for the petitioner is to be accepted, Section 28 will be ultra vires so far as the proceedings to be started by the Income-tax Officer are concerned hut intra vires when it hears on the jurisdiction of the Appellate Assistant Commissioner or the Appellate Tribunal. We do not think such an anomaly is permissible when a particular provision of an enactment is tested on the touchstone of Article 14 of the Constitution.
8. Quite apart, we feel that there is little room for the application of Article 14 in this case even with regard to proceedings to be started by the Income-tax Officer. It cannot be overlooked that a prosecution under Section 51 or 52 could be initiated only at the instance of the Inspecting Assistant Commissioner and the Income Tax Officer making the assessment is not empowered to do so. In other words, the power to prosecute is conferred under the section on the Inspecting Assistant Commissioner whereas penalty could be levied by the Income-tax Officer. Undeniably the previous approval of the Inspecting Assistant Commissioner has to be sought. Nevertheless, statutorily, it is the Officer concerned that imposes a penalty. It cannot, therefore, be postulated that the Income-Tax Officer has got unguided and unbridled discretion to choose either the one or the other of the courses envisaged in Section 28 or Sections 51 and 52 of the Act.
9. Our view is reinforced by a judgment of the Madras High Court in Sivagaminatha Moopanar and Sons v. Income tax Officer : 28ITR601(Mad) . The matter was dealt with elaborately by Rajagopalan and Rajagopala Ayyan-gar IT in that case and we express our respectful accord with the principle of that case. For these reasons, we repel the contention of the learned counsel for the petitioner based on Article 14 of the Constitution.
10. The argument founded on Section 28(3) of the Act is equally fallacious. The relevant portion of Section 28(3) bearing on the argument recites:
'No order shall be made under Sub-section (1) unless the assessee has been heard, or has been given a reasonable opportunity of being heard'.
The argument pressed upon us is that since the Department issued only a notice calling upon the assessee to show cause either in writing or in person why penalty under Section 28 should not be imposed, itdoes not amount to giving 'a reasonable opportunityof being heard' within the meaning of Section 28(3) of the Act.
11. To substantiate this proposition, reliance is placed on the judgment of the Orissa High Court in ShriJal Sagarmull v. Commissioner of Income-tax B and O : 28ITR837(Orissa) . This report does certainly lend countenance to the proposition asserted, by the learned counsel for the petitioner. It was laid down there that a notice couched in a language similar to the one before us is not a sufficient compliance within 'the provisionsof Section 28(3). This is what the learned Judges observed at page Section 41 of the report (ITR); (at p. 33 of AIR);
'What the section contemplates is a hearing bythe taxing authority or an opportunity to the asses-see to be heard. The tribunal seems to be of theopinion that there is no difference either in language or in spirit, between what the section contemplates and what the Income-tax Officer has done. A person today now cause in writing without being present;but it is obligatory on the Income-tax Officer to hearhim give him an opportunity of being hoard. Itshould also he noticed that the assessee has been, given the option of either sending his explanation,or being present in person while showing cause.Where the assessee sends his explanation by postthe income-tax Officer may or may not apply hismind (o that explanation and impose the penaltynone-the-less; if the Officer does so, he clearlyoffends both the language and the spirit of the provisions of Section 28(3)'.
12. With great respect, to the learned Judgeswere unable to subscribe to the theory propoundedby them. It is not shown what the Officer is expected to do. Is there an obligation on his part to postpone the proceedings till he is able to securethe presence of the assessee' or, are the proceedings vitiated by reason of the failure of the assessee to be present at the time of hearing? We do not think that any of these possibilities is contemplated by Section 28(3). All that is required to be done under that section is thai the assessee should have been given a reasonable opportunity of placing his case before the Tribunal concerned. It is open to him to state in writing his objections, if he had any, or to appear before the officer concerned either in person or by counsel.
It is optional with him to take up either of the two notices. It may be that if in addition to sending his representation, he appears and asks for a personal hearing, the officer concerned may have to concede to that request. But that is not the same as to say that to leave the option to the assessee is not a strict compliance with the provisions of Section 28(3). In our opinion, the notice which sets out the circumstances which led to the issue of the notice in question constitutes a 'reasonable opportunity' with in the ambit of Section 28(3).
To accept the soundness of : 28ITR837(Orissa) is to expect the Income-tax Officer to do something which he is not required todo by that section. This will be putting a premiumupon the dilatory tactics of a person guilty of concealment etc.
13. This matter came up foe consideration 'before the Madras High Court in Ayyasami Nadar v.Commissioner of Income-tax : 30ITR565(Mad) . The Bench negatived a similarcontention and the learned Judges finally stilted thus:
'The sub-section only requires that the assesseeshould be given a reasonable opportunity of being herard and so long as this is granted it does notmutter what other alternatives are afforded to the assessee in addition'.
It follows that this argument also is unsubstantial and cannot prevail.
14. Coming to the question whether the penalty was levied within a reasonable lime, we think that this does not deserve any consideration. The proceedings under Section 28 were started even a week before the final determination of the assessment. It is not complained that it was due to the remissness of the Department. It is inconceivable that the Officer would have delayed the matter. As we have already pointed out, the notice was issued to the assessee on 22-3-1946 and the assessment was made on 30-3-1946. This contention is not admissible and has to be rejected.
15. The fourth and the last submission utterly lacks in substance For one thing, the question of substitution of legal representatives arose long after the writ petitions were filed and therefore it is outside the purview of the writ petitions. Be that as it may, Section 24B read with Section 47 is comprehensive enough to take in IP LEgal representatives as well. Section 24B (I) provides:
'Where a person dies, his executor, administrator or other legal representative shall be liable to pay out of the estate of the deceased person to the extent to which the estate is capable of meeting the charge the tax assessed as payable by such person, or any tax which would have been payable by him under this Act if he had not died'.
Section 47 reads thus:
'Any sum imposed by way of penalty under the provisions of Sub-section (2) of Section 25, Section 28, subsection (6) of Section 44E, Sub-section (5) of Section 44F or Sub-section (1) of Section 46, any interest payable under the provisions of Sub-sections (4), (6), (7) or (8) of Section 18A shall be recoverable in the manner provided in this Chapter for the recovery of arrear of tax'.
It is clear that n penalty levied under Section 28 would be recoverable as an arrear of tax. Such an arrear of tax falls under Section 24B and the legal representatives are therefore liable to make the payment as indicated in Section 24B. Even otherwise, in this case, the whole estate is subject to the payment because the petitioner represented the joint family, he having been the Kartha of the Hindu family, as recited in very affidavit itself. We are unable to see how the legal representatives could escape payment of penalty. If really they arc aggrieved in any way by the action of the Revenue, it is open to them to lake such appropriate proceedings as they may be advised. In this premises, all the submissions by the learned counsel for the petitioner have to be repelled,
16. In the result, the Writ Petitions are dismissed with costs. Advocate's fee in both of them together is feed at Rs. 150/-.