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Mrs. N. Savithri Sam Vs. Income-tax Officer - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberWrit Petition No. 1785 of 1967
Judge
Reported in[1969]72ITR730(Mad)
ActsIncome Tax Act, 1961 - Sections 220(6)
AppellantMrs. N. Savithri Sam
Respondentincome-tax Officer
Appellant AdvocateK. Ramagopal, Adv.
Respondent AdvocateV. Balasubrahmanyan and ;J. Jayaraman, Advs.
Excerpt:
.....complained against in this petition is that the correspondence we have referred to shows that the income-tax officer was under the impression that the commissioner having passed an order he had no alternative but to follow it. that being the position, even if the commissioner is moved in the first instance by a party, he may as well direct the party to move the income-tax officer having jurisdiction in the matter and not forestall and thus give a handle to an assessee to aver that the income-tax officer has not functioned himself under section 220(6). 3. but in this case we are satisfied that the income-tax officer was not guided by the directions of the commissioner but merely communicated his directions to the petitioner and later, when he found that the directions had not been..........12, 1967, of the petitioner under section 220(6) of the income-tax act, 1961. on may 17, 1967, the income-tax officer communicated to the petitioner that, having regard to his representation to the commissioner of income-tax on april 9, 1967, in regard to the payment of tax, the income-tax officer was prepared to stay the collection of the tax in dispute in the appeal, if he paid one-half relating to the assessment year 1961-62 before may 25, 1967. the income-tax officer added that, if the petitioner defaulted, even the limited stay would be deemed to be withdrawn. on june 12, 1967, the petitioner applied to the income-tax officer and stated that as soon as a piece of land mentioned therein was sold, he would realise rs. 25,000 and pay the same over towards the tax arrears immediately......
Judgment:

Veeraswami, J.

1. This petition is to direct the Income-tax Officer, Central Circle I, Coimbatore, to consider the application dated June 12, 1967, of the petitioner under Section 220(6) of the Income-tax Act, 1961. On May 17, 1967, the Income-tax Officer communicated to the petitioner that, having regard to his representation to the Commissioner of Income-tax on April 9, 1967, in regard to the payment of tax, the Income-tax Officer was prepared to stay the collection of the tax in dispute in the appeal, if he paid one-half relating to the assessment year 1961-62 before May 25, 1967. The Income-tax Officer added that, if the petitioner defaulted, even the limited stay would be deemed to be withdrawn. On June 12, 1967, the petitioner applied to the Income-tax Officer and stated that as soon as a piece of land mentioned therein was sold, he would realise Rs. 25,000 and pay the same over towards the tax arrears immediately. The petitioner further stated that the Income-tax Officer should bear with his difficulties and consider his case sympathetically. In the meanwhile, it appears, a representative of the petitioner met the Income-tax Officer and explained his difficulties. Noting that the petitioner did nothing thereafter, the Income-tax Officer intimated to the petitioner that the terms of his earlier letter dated May 17, 1967, could not be altered but he was prepared to give time for payment till June 12, 1967, and if there was no payment there would be no stay.

2. Until June 12, 1967, there was thus no application before the Income-tax Officer himself to exercise his power under Section 220(6). The letter of the Income-tax Officer dated May 17, 1967, naturally, therefore, embodied only the direction of the Commissioner of Income-tax, which was given on the representation directly made to the Commissioner by the petitioner. But the order of the Income-tax Officer dated June 6, 1967, extending the time for payment of one-half of the disputed tax till June 12, 1967, was obviously in exercise of his own power under Section 220(6). But what is complained against in this petition is that the correspondence we have referred to shows that the Income-tax Officer was under the impression that the Commissioner having passed an order he had no alternative but to follow it. Our attention has been invited to paragraph 4 of the counter-affidavit where the position taken up is that, while the Income-tax Officer would have been the proper authority to be approached for stay, and not the Commissioner himself, when once the petitioner approached the Commissioner and the latter made an order, it was the duty of the Income-tax Officer to carry out the Commissioner's orders and not to vary them. On this basis the revenue proceeds in the counter-affidavit to say that, that being the position of the Income-tax Officer, no mandamus can issue to him. We are of the view that this is not a correct stand to take. The jurisdiction of the Income-tax Officer under Section 220(6) is quasi-judicial and has been exclusively entrusted to him by the statute. It follows, therefore, that he has got a duty to apply his own mind to the question of grant of stay, not controlled in suchexercise by any direction or guidance by any higher authority including the Commissioner. It is true the Commissioner of Income-tax is higher up in the hierarchy of officials of the income-tax department and as such he has got administrative jurisdiction over all his subordinates. That can enable him only to give such administrative directions as are not prohibited or impliedly forbidden by (he provisions of the Act. Where an Income-tax Officer is entrusted with a quasi-judicial function, no direction can be given to him by the Commissioner in exercise of his administrative superiority. Even if there is such a direction given by the Commissioner, however embarrassing it may be for the Income-tax Officer, it is his statutory duty to consider the question of stay by applying his own uncontrolled mind and express his view which will be embodied in his order. It may be, in going through that process, he may eventually agree with the Commissioner. But it should not appear that he merely carried out the orders of the Commissioner. That being the position, even if the Commissioner is moved in the first instance by a party, he may as well direct the party to move the Income-tax Officer having jurisdiction in the matter and not forestall and thus give a handle to an assessee to aver that the Income-tax Officer has not functioned himself under Section 220(6).

3. But in this case we are satisfied that the Income-tax Officer was not guided by the directions of the Commissioner but merely communicated his directions to the petitioner and later, when he found that the directions had not been complied with, he himself extended the time for payment. The application of the petitioner dated June 12, 1967, does not appear to be one under Section 220(6), Actually it did not ask for any stay on any terms but only wanted the Income-tax Officer to appreciate his difficulties and be sympathetic towards him. We consider, therefore, that there being no application properly filed before the Income-tax Officer under Section 220(6), no mandamus is called for. It will be open to the petitioner to apply even at this stage under Section 220(6). The petition is dismissed but with no costs.


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