In this writ petition, Mr. Rama Shenoi, learned counsel for the petitioner, challenges no doubt the orders of assessment made by the Agricultural Income-tax Officer for the year 1958-59 under exhibit P-I as also two orders levying penalty for non-payment of the tax as evidenced by exhibit P-8 dated August 20, 1960, and exhibit P-14 dated November 30, 1960. The main contention that is urged by Mr. Rama Shenoi, learned counsel for the petitioner, regarding the assessment as such is that it is arbitrary and the figures mentioned therein are not related to the facts as they exist. There is also a contention that, after having rejected the accounts of the petitioner, the assessing authority has not issued any pre-assessment notice informing the petitioner of the basis on which he proposed to make a best judgment assessment as has been laid down by several decisions of this court.
The attack that is made against the order levying penalty under exhibit P-8 is that the petitioner after filing an appeal has admittedly made a request under exhibit P-3 dated June 9, 1960, and repeating the same request by subsequent applications made not to that the petitioner as in default under section 40 of the Agricultural Income-tax Act and it will be seen that the said application, if at all, can be stated to have been negatived by an order passed under exhibit P-11 dated October 10, 1960, that is, long after the levy of penalty under exhibit P-8. That is, according to Mr. Shenoi, the officer has first to consider the application filed under section 40 according to the principles laid down by this court and after giving it a proper consideration should have given proper directions and it is only after the said application has been disposed of, if at all, there will be a jurisdiction for levying penalty on the ground that the tax has not been paid. It is the grievance of the petitioner that even during the pendency of the application filed by the petitioner under section 40 and without disposing it of, an order levying penalty under exhibit P-8 has been made.
Equally, the order under exhibit P-14 dated November 30, 1960, is resisted by the learned counsel for the petitioner on the ground that the order, exhibit P-11 is quite arbitrary without having any regard to the various matters mentioned in the application already filed by the petitioner as well as the reasonable hope of the petitioner regarding the possibility of getting relief before the Appellate Assistant Commissioner.
So far as these aspects are concerned, it is brought to my notice by the learned Government Pleader that the order of assessment, exhibit P-1, as well as the order of the first levy of penalty, exhibit P-8, are both the subject of direct attack in appeals preferred by the assessee and these appeals are pending adjudications before the Appellate Assistant Commissioner.
Though there seems to be considerable force in the grievance voiced on behalf of the petitioner by Mr. Rama Shenoi regarding the assessment order passed as such as also the procedure adopted by the assessing authority in levying penalty under exhibit P-8, it is not possible for this court to grant relief regarding these orders in view of the Division Bench ruling of this court to the effect that the powers under article 226 of the Constitution under the Act itself. It is on this limited ground that I am not interfering with those orders under attack. But these aspects may be pressed before the Appellate Assistant Commissioner, who, I dare say, will give due consideration to these grievances voiced by the petitioner. I leave the matter there and therefore the grounds of attack levelled against the orders, exhibits P-1 and P-8, will have to be pursued by the petitioner before the Appellate Assistant Commissioner and appropriate reliefs sought at his hands.
But so far as exhibit P-14 is concerned, it is admitted that there is no appeal pending against that order. So far as the second levy of penalty under exhibit P-14 dated November 30, 1960, is concerned this court is not hampered by the circumstances which exist in respect of the assessment order and the first levy because admittedly there is no appeal taken as against this order.
No doubt, the learned Government Pleader also urged that just as the petitioner has filed an appeal against the order of the first levy of penalty under exhibit P-8, it would have been open to him to have pursued the same remedy as against this order also. It may be that the petitioner could have done it. But the question is whether the petitioner should be denied relief by this court when once this court is satisfied that the levy of this penalty under exhibit P-14 is quite arbitrary and unjustified. Admittedly, the application filed by the petitioner long before the order, exhibit P-8, was passed under section 40 was pending and the officer has not chosen to exercise his discretion properly when he no doubt purported to dismiss the same under exhibit P-11 as late as October 10, 1960. Therefore, the order imposing the second levy under exhibit P-14 dated November 30, 1960, is quashed and as I mentioned earlier as far as the orders, exhibit P-1 and exhibit P-8, are concerned, the petitioner has to seek appropriate reliefs in the appeals that are actually pending before the Appellate Assistant Commissioner.
Therefore, this writ petition is allowed to the extent mentioned above and the parties will bear their own costs.
As there has been a stay of collection of tax levied under exhibit P-1 and the penalty under exhibit P-8 by the order of my learned brother, Mr. Raghavan J., dated December 27, 1960, passed in C. M. P. No. 6226 of 1960, the proper direction that has to be given is that there will be no attempt at collecting the tax under exhibit P-8 till the disposal of the appeals pending against those orders and for two weeks thereafter. The Appellate Assistant Commissioner may dispose of the appeals as expeditiously as possible.