S. Velu Pillai, J.
1. This is a petition under Art. 226 of the Constitution to quash Ext. P2 dated March 2, 1959, by which the Income-tax Officer refused to treat the petitioner, an assessee under the Indian Income-tax Act, 1922, 'as not being in default as long as' the appeal preferred by him against the assessment 'is undisposed of,' by virtue of Section 45 of the Act. The petitioner submitted a return of income for about ten thousand rupees, but the Income-tax Officer assessed him, according to his best judgment, on seventy-nine thousand odd rupees and imposed tax to the extent of over thirty-four thousand rupees.
The petitioner deposited the admitted income-tax of two thousand rupees, and preferred an appeal against the assessment. A sum of nearly six thousand rupees due to the petitioner by way of refund of income-tax for previous years was adjusted by the Income-tax Officer, and the balance of tax payable by the petitioner was over twenty-four thousand rupees. The petitioner made an application under Section 45 of the Act, for treating him as not in default pending the disposal of his appeal, on the ground, that he had discontinued the major items of his business, that he was subjected to financial difficulties and that he has a fair chance of success in the appeal preferred by him, expressing his willingness, for a sum of over seven thousand rupees due to him under some forest contract from Government, to be set off against his liability. By Ext. P2 the Income-tax Officer has, in effect, rejected his application but in these terms :
'In the circumstances stated by you, you are allowed to pay the amount in two instalments to be paid in March and April 1959.'
The complaint of the petitioner before me was, that the Income-tax Officer did not exercise his discretion at all under Section 45 of the Act. Even the counter-affidavit of the respondent does not go further than Ext. P2, in elucidating the ground on which the application under Section 45 was ordered as above; paragraph 4 of the counter-affidavit only repeated what Ext. P2 has stated, that 'the circumstances of the case did not justify stay of collection.' Ext. P2 referred to the circumstances stated by the petitioner as the basis of the order.
For one thing, it is not possible to see, how the circumstances relied on by the petitioner can by themselves constitute a ground for decision against him; if so, the counter-affidavit at least should have indicated it. Secondly, the expression 'the circumstances stated' is so nebulous, that it can go well with any order that may be passed, and cannot by itself furnish an indication, as to the exercise of discretionary power.
2. The decided cases are clear, that the Income-tax Officer must exercise the discretion vested in him under Section 45 of the Act, and that in a proper manner, failing which, the jurisdiction under Article 226 can be invoked. The latest case on the point was decided under Section 31(3) of the Wealth Tax Act, 1957, which is in pari inateria with the relevant part of Section 45 of the Act. D. N. Sinha, J. in his judgment in Aluminium Corporation of India Ltd. v. C. Balakrishnan : 37ITR267(Cal) , has enumerated several points which the authority under Section 31(3) of the Wealth-Tax Act may usefully consider in exercising his discretion which, in my opinion, also apply to the exercise of the discretion under Section 45 of the Act. It is unnecessary to recapitulate these several points in this judgment. The learned Judge has also answered one of the contentions pressed before me by counsel for the respondent, in these terms :
'Quick realisation of tax may be an administrative expediency, but by itself it constitutes no ground for refusing a stay. While determining such an application, the authority exercising discretion should not act in the role of a mere tax-gatherer.'
The learned Judge has also quoted the following observations of Harries, C. J., in an earlier case :
'Once an appeal was filed, however, it would he for the Income-tax Officer then to consider whether in the particular circumstances it would be just and proper to treat them as defaulters.'
In V. Sreeramamurthy v. Income-tax Officer,AIR 1957 A. P 114, decided by a DivisionBench of the Andhra Pradesh High Court, SubbaRao, C. J., as he then was, has held, that the discretionary power under Section 45 of the Act is coupledwith a duty to exercise it, and if he does not exercise it or exercises it in such a manner that it isno exercise of discretion at all, he can be compelled under Article 226 to discharge his duty.
3. Applying these principles to the present case, I am not satisfied, that the Income-tax Officer exercised any discretion whatever, in rejecting the application under Section 45 of the Act. I therefore quash the order Ext. P2, and direct the Income-tax Officer to dispose of the application in accordance with law. It is seen from Ext. P-1, the application of the petitioner, that his appeal had been heard on February 20, 1959, but it still remains undisposed of. I make no order as to costs.