Sankar Prasad Mitra, J.
1. Sub-section (6) of Section 220 of the Income-tax Act, 1961, reads as follows :
'Where an assessee has presented an appeal under Section 246 the Income-tax Officer may, in his discretion, and subject to such conditions as he may think fit to impose in the circumstances of the case, treat the assessee as not being in default in respect of the amount In dispute in the appeal, even though the time for payment has expired, as long as such appeal remains undisposed of.'
2. In the instant case, there was an order of assessment .against the petitioner in respect of the assessment year 1963-64. The petitioner preferred an appeal to the Appellate Assistant Commissioner. On the 22nd April, 1968, the petitioner wrote 16 the Income-tax Officer who made the assessment requesting postponement of payment of the tax assessed pending the disposal of the appeal to the Appellate Assistant Commissioner. In this letter two grounds in support of the prayer to keep the matter of payment in abeyance have been advanced. The grounds are :
(i) the petitioner has preferred an appeal and believes that his grievances would be redressed by the Appellate Assistant Commissioner ; and
(ii) in view of the nature and extent of the petitioner's business and the business condition then prevailing the petitioner was unable to pay the huge demand of Rs. 48,566.
This letter of the 22nd April, 1968, was not dealt with by the Income-tax Officer, responsible for the assessment, that is,, the respondent No. 1,but by the Income-tax Officer, Collection, District III(3), Calcutta, that is,respondent No. 2. . In his reply dated the 20th May, 1968, respondent No. 2 has refused to stay realisation of tax pending the petitioner's appeal to the Appellate Assistant Commissioner. His reason is that stay of realisationcannot be granted on the ground that an appeal has been preferred.With regard to the petitioner's plea of inability to make payment of the .amount demanded all at once, respondent No. 2 has requested the petitionerto appear before him 'with a definite scheme of payment so that theentire demand may be liquidated by the year.
3. Mr. Ghosh appearing for the petitioner has argued before me that respondent No. 2 has not judicially exercised his discretion given to him under Sub-section (6) of Section 220 of the Act of 1961. Learned counsel contends that the reasons for refusal have not at all been stated in the letter of the 20th May, 1968. Moreover, this letter does not show that respondent No. 2 had taken into account relevant factors like possibility of petitioner's success in the appeal, the quantum of the demand and the petitioner's financial difficulties in satisfying the demand.
4. It seems to me that the reply of respondent No. 2, dated the 20th May, 1968, takes into account all the factors that the petitioner invited him to consider. He is right in saying that stay of realisation cannot be granted simply because an appeal has been preferred. If the petitioner wanted him to consider why the petitioner believed that he would be successful in the appeal, necessary materiels for the purpose should have been placed before him. I do not find such materials in the petitioner's letter of the 22nd April, 1968, except bare assertions relating to the petitioner's belief that his grievances would be redressed on appeal. As regards the petitioner's inability to pay in a lump respondent No. 2 has promised to give him a hearing and has asked him to submit a scheme for payment in the course of a year. Reading the letter of the respondent No. 2 dated the 20th May, 1968, I am unable to come to the conclusion that he has not exercised his discretion in the manner required by law. This contention of the petitioner's counsel is, therefore, overruled.
5. The second contention is that the assessing Income-tax Officer wasrespondent No. 1. But the application for stay has been disposed of byrespondent No. 2. In other words, the Income-tax Officer who made theassessment had not exercised his discretion as required by Sub-section (6) of Section 220 of the Act of 1961.
6. In paragraph 6 of the affidavit-in-opposition of Sheo Narayan Tiwari affirmed on the 7th August, 1969, it is stated that by an order dated 15th January, 1968, the Commissioner of Income-tax directed that the respon-dent No. 2 should deal with all matters relating to collection and realisation of tax from, inter alia, the petitioner. A copy of this order hasbeen annexed to the affidavit-in-opposition. It appears that this order was made under Section 124 of the Income-tax Act, 1961. Under this section the Commissioner of Income-tax has the power to give directions as to the functions of the Income-tax Officers in respect of specified areas, and specified persons or classes of persons or specified incomes or classes of income. By this order of the 15th January, 1968, the Commissioner of Income-tax, inter alia, assigned to the respondent No. 2 'all the functions of an Income-tax Officer under Section 156 of the Income-tax Act, 1961, and under Chapter VII of the Income-tax Act, 1961'. Section 220 relates to tax payable in a notice of demand under Section 156 and the circumstances in which an assessee is deemed to be in default. By virtue of the order of the Commissioner of Income-tax made on the 15th January, 1968, the respondent No. 2, it seems, had the power to deal with and dispose of the petitioner's application for stay of realisation under Sub-section (6) of Section 220. The second contention of the counsel for the petitioner in these premises is also overruled.
7. The third contention is that before addressing to the petitioner the letter of the 20th May, 1968, the respondent No. 2 did not give to the petitioner an opportunity of being heard. In the petitioner's letter of the 22nd April, 1968, the petitioner did not ask for any opportunity. The points raised in the said letter of the 22nd April, 1968, have been specifically answered in the reply of the respondent No. 2 of the 20th May, 1968. In these circumstances, I am unable to agree that there has been any denial of natural justice.
8. Apart from this letter of the 20th May, 1968, containing the order of the respondent No. 2 that stay of realisation cannot be granted, another letter of the respondent No. 2 has also been challenged in this application, that is, his letter of the 15th/28th June, 1968. In this letter the respondent No. 2 has reminded the petitioner of 'tax outstanding' for, inter alia, the assessment year 1963-64 and has requested the petitioner to appear before him on a particular day. I do not see any reason why this court should interfere with a request of this kind in an application under Article 226.
9. The result is that this application is dismissed. There will be a stay of operation of this order for four weeks.
10. There will be no order as to costs.