VEERASWAMI J. - There appears to be no substance in this petition which is to forbid the respondent from enforcing a demand for payment of penal super-tax levied on the petitioner. It is a private limited liability company registered under the provisions of the Companies Act and was assessed to income-tax for the assessment years 1957-58 to 1962-63. The respondent by a notice dated April 26, 1963, proposed to pass an order under section 23A(1) of the Income-tax Act, 1922, for the assessment years except the last one, and under section 104 of the Income-tax Act, 1961, for 1962-63 and levied penal super-tax on the entire undistributed income for the years on the ground that the petitioner was an investment company. The petitioner says that eventually super-tax was levied, which, in the aggregate, amounted to Rs. 74,535. Pending appeals, which the petitioner preferred to the Appellate Assistant Commissioner of Income-tax, it applied on December 3, 1963, to the respondent to treat it as not being in default in respect of the amount of tax in dispute in the appeals. There was protracted correspondence in the matter, the result of which was the petitioner failed to get any relief in that direction from the respondent. The appeals themselves would appear to have been disposed of by the Appellate Assistant Commissioner of Income-tax and the petitioner was preferring was again called upon to pay the super-tax within a specified time and was informed that in default, penalty would be levied. It was then that the petitioner moved this court.
We find that the petitioner had also filed W. Ps. Nos. 1274 of 1964 to 1277 of 1964, for quashing the orders of the first and the second respondent therein for the assessment years 1959-60 to 1962-63, but they were dismissed as withdrawn on August 20, 1964. Unfortunately, the disposal of the petition before us has been delayed so long and this delay apparently has been taken advantage of with the result that the appeals before the Tribunal also remain to be disposed of yet.
On the facts we have mentioned, it is obvious that this court can no longer give any such direction as has been asked for by the petitioner. The power of the respondent under section 45 of the 1922 Act read with its proviso and section 220(6) of the Income-tax Act, 1961, could be availed of and has got to be exercised only during the pendency of the appeal before the Appellate Assistant Commissioner. Once that appellate authority disposes of the appeals, the power of the Income-tax Officer to treat the petitioner as not being in default in respect of the relative amounts of tax in dispute in the appeals comes to an end.
The petition is dismissed with costs. Counsels fee Rs. 150.