TMI Blog1966 (11) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... a notice under section 22(2) of the Act was served in June, 1945. Before the expiry of the period given therein for filing the return, an application was moved praying for 12 weeks' further time. This application, however, was rejected. Thereafter, notices under section 22(4) were issued to the assessee. The notices were not complied with for one reason or the other. On the 24th of June, 1949, a notice under section 28(3) was issued to show cause why a penalty be not levied in respect of the default in filing the return. Thereafter, a return was filed on the 20th of July, 1949. The assessee in reply to the said penalty notice pleaded that he could not file the return earlier since his books of accounts were with the Enforcement Branch of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal by a short order dated October 23, 1959. The ground relating to the delay in imposing penalty is not discussed in the Tribunal's order." Yet, the Tribunal, in its order on appeal, did not notice any such ground and disposed of the appeal by merely observing : "It was only when a notice under section 28(3) had been issued that the return was filed. There is absolutely no reason for the failure to comply with the notice under section 22(2). We, therefore, confirm that the penalty was rightly levied." The application under section 66(1) having been dismissed, this court under section 66(2) directed the Tribunal to refer the question stated hereinabove. There cannot be much doubt that there was inordinate delay in completing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of fact to determine, in the circumstances of each case, what effect the inordinate delay will have upon the order passed by the Income-tax Officer. This aspect, the Tribunal, with all respect, appears to have completely lost sight of. Mr. V. P. Tewari, learned counsel for the assessee, relied upon the decision of a single judge of this court in Mohd. Atiq v. Income-tax Officer, District II (V), Kanpur, for the proposition that, though no period of limitation is prescribed for imposing a penalty, the proceedings must be taken within a reasonable time, and if there is inordinate delay, then the order of penalty, if levied, should be quashed. That was a case where a writ petition was filed under article 226 of the Constitution challengin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules were amended, as a matter of practice, insisted on these applications being filed within a period of 90 days. This again was, rule of propriety. Similarly, this court, in petitions under article 226/227 of the Constitution, requires, ordinarily, the application to be filed within 90 days. Therefore, where the assessee is not to blame for the inordinate delay in completing penalty proceedings and the sword of Democles has been kept hanging over his head for many a year without any rhyme or reason, it will certainly be a factor, amongst others, for the Tribunal to consider whether the order passed by the Income-tax Officer was a proper one. The view that we are taking would appear to be supported by a decision of the Orissa High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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