Sabyasachi Mukharji, J.
1. The subject-matter of challenge in this application under art. 226 of the Constitution is an order or communication dated the 22nd November, 1978. The petitioner further asks for a mandate upon the respondents to deal with the application under Section 230A(1) of the I.T. Act, 1961, dated the 25th September, 1978, in accordance with law and to issue clearance certificate forthwith.
2. It appears that the petitioner made an application on the 25th September, 1978, in which the petitioner stated that no tax in respect of the Excess Profits Tax Act, 1940, the Business Profits Tax Act, 1947, the Indian Income-tax Act, 1922, the Income-tax Act, 1961, the Wealth-tax Act, 1957, and the Gift-tax Act, 1958, were outstanding. In other words, the petitioner stated that none of the taxes which are required to be considered in an application for the grant of a certificate under Section 230A were outstanding. The petitioner has also stated in this petition that that is the position. In the affidavit-in-opposition to this rule nisi, the respondent has not denied this assertion made on behalf of the petitioner. On the other hand, the respondent-ITO has refused to grant certificate on the 22nd November, 1978, by stating that the property in question was under litigation with the department which is going on appeal before the Supreme Court on acquisition proceedings. As such tax clearance certificate under Section 230A(1) as prayed for should not be allowed. It appears that there was certain acquisition proceeding under Chapter-XX-A of the I.T. Act, 1961, in respect of the premises in question and there was an order under Section 269F(6) by the appropriate officer acquiring the property in question. From that order there was an appeal under Section 269G to the Tribunal and the Tribunal allowed the appeal of the assessee. Aggrieved by the said order of the Tribunal, the revenue preferred an appeal to the High Court under Section 269H and the High Court has dismissed the said appeal with costs. As yet, no further proceeding is pending in respect of the same. In fact no further appeal is provided under the law from the said decision of the High Court. But the respondent may prefer, if the Supreme Court grants special leave, an appeal to the Supreme Court. The respondent states that they would be applying to the Supreme Court for such leave. But that is a consideration wholly irrelevant to the question whether clearance certificate under Section 230A of the I.T. Act, 1961, should be granted or not. Therefore, it appears that the ITO has proceeded on extraneous consideration. He cannot take this factor into consideration at all. He is only to find out whether any tax liability is outstanding in respect of the several Acts mentioned in Section 230A or whether a provision has been made for payment of taxes under those Acts.
3. I, therefore, set aside the order dated the 22nd November, 1978, passed by the respondent No. 1 and I direct the ITO to consider the application dated 25th September, 1978, in accordance with law, namely, to find out whether there is any tax liability outstanding in respect of the several Acts mentioned in Clause (a) of Section 230A of the I.T. Act, 1961, or whether satisfactory provision for payment of such liabilities have, been made under the Act, If the ITO is satisfied either that there is no such liability under those Acts or if he is satisfied that satisfactory provision has been made for payment of liabilities, if any, then he must grant such certificate as quickly as possible and not later than 11th May, 1979. The rule is made absolute to the extent indicated above. There will, however, be no order as to costs. All parties concerned will act on a signed copy of the minutes.