1 8.G.R. SUPREME COURT REPORTS — 71 charge against a police officer above the rank of a constable under the Police Act and such a magistrate has to ‘bea First Class Magistrate. These sections nowhere. exclude departmental enquiry. All that they lay
. down is that- where an offence punishable under the
Police Act is committed by a police officer above the rank of a constable and is to be tried by a court of law it has to go before a First Class Magistrate. That, however, does not mean that no departmental enquiy y can be held with respect to a matter where it is a possible to prosecute a police officer under the Polive
_ Act. There is no force in this contention also and it is hereby rejected. ‘
The appeal therefore fails and is hereby dismissed), but in the circumstances of this case we pass no order’
as to costs.
Appeal dismissed.
M/s. GUDUTHUR BROS. : Uv.
THE INCOME-TAX OFFICER, SPECIAL ; CIRCLE, BANGALORE.
(S. K. Das, M. Hipayatunuan and J. C. Suan, JJ.)
Income-tax— Assessment—Penaliy—Imposition: by ‘Income-tax
- Officer without reasonable opportunity given to assessee of being heard—Order set -aside on appeal and refund directed—No express
_ order of remand—Continuance of proceedings by the Income-tax
Officer—Legality-—Indian Income-tax Act, 1922 (11 of 1922), ss. 28 (z)(a) and 28(3).
The, appellants failed to file their return within the prescri- | _-bed time and on a notice issued under s. 28(1)(a} of ‘the Indian _Income-tax Act, 1922, to show cause why penalty should not be imposed on them, they filed a written reply. Without affording | them an opportunity of being heard as required by s. 28(3) of the Act the Income-tax Officer imposed a penalty on them. On appeal the Appellate Assistant Commissioner set'aside the order
: and directed refund of the penalty. Thereafter the Income-tax
Officer issued a further notice giving an opportunity to the appellants of being heard. The appellants objected to this notice and r960
Phaget Singh
The State of 7”
Pun jab
Wanchoo j.
Z960
July 22
Mis, Guduthur-. Bros, v. The income-tax Officer, Special Circle, Bangalore
72 SUPREME COURT REPORTS {1961 ]
contended that the Income-tax Officer could no longer proceed to re-assess the penalty in the absence of an express order of remand by the Appellate Assistant Commissioner whose order had become final.
Held, that where an order of imposition of penalty made by the [ncome-tax Officer under s. 28(1)(a) of the Indian Incometax Act was vitiated, not by any initial illegality but by one which supervened during the course of the proceedings and the said order was yacated on appeal, the Income-tax Officer was well within his jurisdiction in continuing the proceedings from the stage at which the illegality had occurred and could re-assess the penalty theugh no express order of remand was made.
Jos Chacko Poothokaran v. Income-tax Officer, Ernakulam Circle, [1957] 32 L.T.R. 648, not applied.
CivIL APPELLATE JURISDICTION: Civil Appeal No. 261 of 1958.
Appeal by special leave from the judgment and arder dated November 6, 1956, of the Mysore High Yourt in Writ Petition No. 215 of 1956,
S.N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellants.
K.N. Rajagopal Sastri and D. Gupta, for the res-
" pondent.
Hidayatullah J.
1960. July 22. The Judgment of the Court was delivered by
HipayaTULLaAH J.—This appeal has been filed with the special leave of this Court against a decision of the High Court of Myore, by which it dismissed in. limine an application by the appellants under Art. 226 of the Constitution for a writ of prohibition or some other appropriate writ against the Income-tax Officer, Bellary, Special Circle, Bangalore.
The facts of the case are as follows. For the assessment year 1948.49, the appellants failed to file a return within the prescribed time and the Income-tax Officer, acting under s. 28(1)(a) of the Indian Incometax Act, issued a notice to them to show cause why penalty should not be imposed. In answer to this notice, the appellants filed a written reply and the Income-tax Officer proceeded to levy a penalty of Rs. 16,000, without affording a hearing to them as required by the third sub-s. of s. 28 of the Income-tax
1 8.0.R. SUPREME COURT REPORTS | 73
Act. The matter wastaken up in appeal before the Appellate Assistant Commissioner of Income-tax, who, pointing out that an opportunity of being heard was _ hot granted to the appellants, held that the order was - defective. He therefore set aside that order and directed the refund of the penalty if it had been recovered. _ On receipt of the order, the Income-tax Officer _ issued a further notice calling upon the appellants to appear before him, so that they might be given an opportunity of being heard. He also intimated that
M!s. Guduthur Bros. v. The Income-tux Officer, Special Circle, Bangalore
Hidayatullah J.
if no appearance was made, then he would proceed to ° determine the question of penalty, taking ‘into consideration only the written statement which had been filed earlier. Before, however, the Income-tax Officer could decide the case, the appellants filed a petition under Art. 226 of the Constitution for the issuance of the writs mentioned above. This petition was dismissed in limine by the High Court holding that the contention raised by the appellants may perhaps be raised before the Income-tax authorities. The appel-.
lants thereupon applied for special leave to this Court and leave having been granted, this matter comes up before us.
There is no question here that the requirements of 8.. 28(1)(a) of the Income-tax Act were not completely fulfilled. If the appellants had not filed their return, as they were required by law to do, the omission would attract: cl. (a) of sub-s. (1).of s. 28. We say nothing as to that: Sub-section (3) of s. 28, however, requires that.the penalty shall not be imposed without affording to the assessee a reasonable opportunity of being heard. This opportunity was denied to the appellants and: therefore the order of the -Income-tax Officer was vitiated by an illegality which supervened, not at the initial stage of the proceedings, but during the course of it. The order of the learned - Appellate Assistant Commissioner pointed out the ground on which the illegality proceeded and his order directing the refund of the penalty, if recovered, connot but. be interpreted as correcting the error. and leaving it . open to the Income-tax Officer to continue his proceed- ings from the stage at which the illegality occurred |
Mis. Guduthur Bros. Vv. The income-tax Officer, Special ‘Crrcle, Bangalore
Hidayatullah jf.
74 SUPREME COURT REPORTS [1961]
No express remand for this purpose, as is contended, was necessary.
Our attention was drawn to a decision of a learned Single Judge of the Kerala High Court reported in Jos Chacko Poothokaran v. I. T. O., Ernakulam Circle ('), in which, in similar circumstances, it has been held that since an appeal was not taken by the Commissioner of Income-tax to the Appellate Tribunal under sub-s. (2) of s. 33, the order of the Appellate Assistant Commissioner became fing] and the Incometax Officer could no longer proceed to reassess the penalty. The reason given is, in our opinion, beside the point. What the Appellate Assistant Commissioner did was to vacate the order and direct refund of the penalty in view of an illegality which had occurred during the course of the assessment proceedings. On receipt of the record it was open to the Incometax Officer to take up the matter from the point at which the illegality supervened and to correct his proceedings. It was pointed out in the course of the statement of the case by the appellants that such proceedings could enly be taken during the course of assessment proceedings and those proceedings are concluded. In our opinion, the notice issued to the appellants to show cause why penalty should not be imposed on them did not cease to be operative, because the Appellate Assistant Commissioner pointed out an illegality which vitiated the proceeding after it was lawfully initiated. That notice having remained still to be disposed of, the proceedings now started can be described as during the course of the assessment pro-
-ceedings, because the action will relate back to the time when the first notice was issued.
In our opinion, the Income-tax Officer is well within his jurisdiction to continue the proceedings from the stage at which the illegality has occurred and to assess the appellants to a penalty, if any, which the circumstances of the case may require.
The appeal is accordingly dismissed with costs.
Appeal dismissed.
——oe
(1) [1952] 32 LT.R. 648,