1971 PLP 508 (PTD)

VEERASWAMI, J.‑This is a petition under Article 226 of the Constitution to forbid the respondent from taking any recovery proceedings against the petitioner's husband in pursuance of an order of assessment made against him on March 22, 1966. The petitioner is the wife of the assessee and she says that, though her husband is a citizen of India, he has been prevented from coming over to India from Malaya since September 6, 1965. For the year 1961‑62, he returned an income of Rs. 4,500, but the respondent added a sum of Rs. 58,000 and charged him to tax on a total income of Rs. 62,

002. A demand was made on the assessee on March 28, 1966, for payment of the balance tax due, that is, Rs. 32,282.10. Against the order of assessment, the assessee filed an appeal on April 8, 1966, and on the same day, his power of attorney applied for stay of collection of the tax pending disposal of the appeal. The respondent, by his order dated April 15, 1966, granted time till May 15, 1966, for payment of one‑half of the tax demand and wanted security for the balance, so that the collection thereof might be stayed until the disposal of the appeal or a specified date, whichever was earlier. But the conditions for the stay were not complied with. The respondent accepted the offer on behalf of the assessee to pay a sum of Rs. 5,000, but even this amount was not paid. Once again time was granted by the respondent to pay the one half, but there was default. On June 25, 1966, the Inspecting Assistant Commissioner of Income‑tax Tiruchirapalli, was moved for stay. This officer, by an order of his dated July 25, 1966, granted time for payment of Rs. 16,000 on or before August 15, 1966, and, on condition of such payment, agreed to stay recovery of the balance of the tax arrear till after the disposal of the appeal, provided security was furnished therefore, on or before August 15, 1966. These conditions were again not complied with, but, instead, on behalf of the assessee, an application was filed before the Com missioner of Income‑tax on August 10,1966, for stay of collection. On December 21,1966, the Commissioner directed that, on pay ment of Rs. 16,000 immediately, the demand of the balance of the tax would be stayed till February 1967, or till the disposal of the appeal by the Appellate Assistant Commissioner, whichever was earlier. It appears, pursuant to the Commissioner's orders, the respondent issued two chalans three days later, one for Rs. 16,000 and the other for the balance of arrears and also issued a certificate to the District Collector, Thanjavur, for recovery of the arrears, but with a request not to proceed immediately with the collection, in view of the Commissioner's orders aforesaid. Even then the assessee failed to pay any amount towards the tax arrears. In view of the default, the first respondent on January 11, 1967, levied a penalty of Rs. 1,500 for the persistent failure to pay the arrears or any part thereof. When the recovery pro ceedings were proceeded with, the assessee preferred objections thereto on certain grounds. By an order dated May 15, 1967, the Commissioner would appear to have permitted the assessee to pay the sum of Rs. 16,000 immediately and the holding over of the balance till July 30, 1967, or the disposal of the appeal, whichever was earlier, subject to the furnishing of adequate security. It is not in dispute even this chance was not availed of and the entire tax continues to be in arrears. The petitioner's contention before us is that the respondent and the officers higher up failed to exercise their discretion properly under sec tion 220(6) of the Income‑tax Act, 1961. According to the petitioner, the conditions contemplated by this provision only be furnishing of security and not instalmental payments of the arrears. On this view of the scope of section 220(6) it is said that the refusal to stay the collection of the tax is illegal. In our view, the narrow, view of the scope of section 220(6) cannot be accepted. What is said is that subsection (6) should be given a limited scope, as it has to be read in the light of sub section (3), which gives discretion to the Income‑tax Officer in certain circumstances to extend the time for payment or allow payment by instalments. As a specific provision has been made in the form of subsection (3), so runs the argument for the petitioner, for payment by instalments of the arrears, it stands to reason that, read in the light of this provision, subsection (6) should be read not as a repetition but as being limited to granting stay on furnishing security. Section 220 deals with collection and recovery of tax. It provides that, on service of the demand notice, the tax should be paid within the period of 35 days and that, if the demand is not complied with within the time‑limit, the assessee should be treated as being in default. Subsection (3) provides that an assessee may, before the expiry of the time fixed in the demand notice for payment, apply for stay and the Income‑tax Officer may on such application extend the time for payment or allow payment by instalments, subject to such conditions as he may think fit to impose in the circumstances of the case. Where, however, the assessee has I referred an appeal tinder section 246, the Income‑tax Officer is given the discretion to treat the assessee as not being in default in respect of the amount in dispute in the appeal, subject to such conditions as he may think fit to impose in the circumstances of the case. When a statute entrusts to an officer, who is a creature of such a statute, a discretion of that nature, it is obviously coupled with a duty to exercise it. The officer has to exercise his discretion according to law and reason, neither arbitrarily nor capriciously. He cannot, in exercising his power, take into account any irrelevant or extraneous matter, not germane to the occasion and the exercise of his discretion. This position is well settled and we do not think it necessary to make extensive citation of authority in support. Vetcha Sreeramamurthy v. Income‑tax Officer, Vizianagaram ((1956) 30 I T R 252), deals with this question with reference to section 45 of the Income‑tax Act, 1922, which corresponds to section 220 of the present Income‑tax Act. Subba Rao, C. J., (as he then was) and Viswanatha Sastri, J., refer to all the relevant authorities in their separate judgments and they hold that the discretion conferred by section 45 of the Income‑tax Act on the Income‑tax Officer to treat the assessee, who has not paid the tax demanded, as not being in default, if he has preferred an appeal, was a power exercisable both against and in favour of the assessee or the State, as the case may be, and that the power was coupled with a duty to exercise his discretion wren the facts which called for its exercise existed and that the fact that exercise of the Power was left to the discretion of the officer did not exonerate him from discharging his duty. Reference was made by the learned Chief Justice to the classical dictum in Maxwell: According to his discretion' means, it has been said, according to the rules of reason and justice, not private opinion, according to law and not humour ; it is to be not arbitrary, vague and fanciful, but legal and regular; to be exercised, not. capriciously, but on judicial grounds and for substantial reasons. And it must be exercised within the limits to which an honest man competent to the discharge of his office ought to confine himself, that is, within the limits and for the objects intended by the Legislature. These dicta may be summed up in the statement of Lord Esher that the discretion must be exercised without taking into account any reason which is not a legal one. If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law, they have not exercised their discretion." These principles, which we unhesitatingly accept, can be put in no better words. The petitioner's submission before us is not that the respondent declined to exercise his discretion but, in doing so, he has not kept in view the correct intent and scope of subsection (6) of section

220. On her behalf, reliance is placed on the following observations of Viswanatha Sastri, J., in the decision referred to: "Lastly, it has to be observed that section 45 of the Income tax Act is somewhat cryptic in its terms and merely gives the Income‑tax Officer power to declare a person to be not in default pending the appeal. There is no provision for stay similar to Order XLI, rules 5 and 6, of the Civil Procedure Code. There is no conferment of an express power of granting a stay of realisation of the tax, though the effect of an order in favour of the assessee under section 45 of the Act is a stay. Nor is there a provision for allowing the tax to be paid in instalments or for taking security for deferred payment." And it is argued that, in view of this position, the discretion given to the Income‑tax Officer under subsection (6) of sec tion 220 is limited to grant of stay in the sense that the assessee will not be treated as being in default in respect of the disputed amount in the appeal, subject only to the conditions that security is furnished for that amount. It is true that the power of the Income‑tax Officer under subsection (6) is in the discretion to treat the assessee as not being in default in respect of the disputed amount in the appeal, but in a sense and in effect, when the Income‑tax Officer treats an assessee as not being in default, it amounts to stay of collection of the amount in dispute. Subsec tion (6), if regard is had to the language employed therein, does not in so many words say that the discretion entrusted to the Income‑tax Officer is to be exercised in a particular manner and not in any other. Subsection (6) specifically says that he may exercise his power in his discretion and subject to such conditions as he may think fit to impose in the circumstances of the case. That, in our opinion, gives a very wide scope to the discretion entrusted to the officer as well as to the conditions which he may stipulate in the exercise of his discretion. The only limitations appear to be that the conditions stipulated must, in his opinion, be fit in the circumstances before him. He is not limited, therefore, to treating the assessee as not being in default in respect of the disputed amount only on condition that the assessee should furnish security. In our opinion, subsection (6) is wide enough to cover a stay on condition that the assessee should pay the disputed amount by instalments either in whole or in part and should furnish security for the balance. We are also unable to import any limitation into sub section (6) through a reading of subsection (3). As we said, learned counsel for the petitioner compared and contrasted the two provisions and stated that because subsection (3) specifically provided for a stay subject to the condition that the amount in arrear might be paid by instalments, so it followed that, in the absence of a repetition of that provision in subsection (6), it will be proper to construe the latter provision as not including a power to impose a condition for instalmental payment. The argument seems to us to overlook the mutual scope and purpose of the two subsections. Subsection (3) deals with not the disputed tax but the whole amount in arrear. The power given to the officer is to extend the time for payment or allow payment by instalments, and even then subject to such conditions as he may think fit to impose in the circumstances of the case. But, in subsection (6), the language employed is even wider and the discretion to be exercised is not limited to extension of time for payment on condition that it will be paid by instalments. It has not been suggested that the respondent or the officers higher up failed to take relevant circumstances or exercised their discretion arbitrarily. As we said, all that has been said for the petitioner is that under subsection (6), the respondent has no option but to treat the assessee as not being in default in respect of the disputed amount on conditions that he furnished security. We are unable to accept the contention for the reasons we have mentioned. The petition is dismissed with costs. Counsel's fee Rs.

150. Learned counsel for the assessee prays that we may direct the Appellate Assistant Commissioner concerned to dispose of the appeal expeditiously. We think that this is a reasonable request and we grant it. The Appellate Assistant Commissioner will dispose of the appeal within three months from to‑date.