TMI Blog1967 (3) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 28 of the Income-tax Act, 1922 (hereinbelow called the Act). The penalty was not paid, and on November 12, 1961, the Income-tax Officer imposed a penalty of Rs. 600 for default in payment of the penalty imposed under section 28. The appellant was then asked to pay the amount of the second penalty. He protested and filed a writ petition in this court. The petition was dismissed on merits by a learned single judge ; hence this appeal. Counsel for the appellant has challenged the validity of the imposition of a penalty on a penalty. Counsel for the respondent seeks to justify the imposition with the aid of section 46(1) and section 47 of the Act. Section 46(1) provides : "46. (1) When an assessee is in default in making a payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of income-tax and penalty ". Lastly, we venture to think that sub-section (1) of section 46 being a provision of punitive nature, the word " income-tax " should receive its ordinary and natural meaning. No one should be put in peril on an ambiguity. The learned judge could not give due weight to these considerations for he felt that the first question was foreclosed against the appellant by the decision of the Supreme Court in C. A. Abraham v. Income-tax Officer, Kottayam. The learned judge said : " So far as the first ground is concerned, that seems to be no longer available to the petitioner in view of the decision of the Supreme Court ruling referred to above. " The learned judge relied on the following observations in the afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng upon Makankali Subba Rao v. Commissioner of Income-tax, in which it was held that an order imposing penalty under section 28 (1)(c) of the Indian Income-tax Act upon a Hindu joint family after it had disrupted, and the disruption was accepted under section 25A(1) is invalid, because, there is lacuna in the Act, submitted that a similar lacuna exists in the Act in relation to dissolved firms. But whether on the dissolution of a Hindu joint family the liability for penalty under section 28 which may be incurred during the subsistence of the family cannot be imposed does not fall for decision in this case ; it may be sufficient to observe that the provisions of section 25A and section 44 are not in pari materia. In the absence of such phras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 46 and we think it should be restricted to those provisions only. The learned judge took the view that the second question should also be decided in favour of the respondent in view of another decision of the Supreme Court in Collector of Malabar v. Erimmal Ebrahim Hajee. The learned judge said : " So far as ground No. 3 is concerned, it appears to me that that ground also is no longer available in view of another decision of the Supreme Court... " The learned judge relied upon the following passage in the judgment of the said case : " When dues in the shape of money are to be realised by the process of law and not by voluntary payment, the element of coercion in varying degrees must necessarily be found at all stages in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the mode of recovery. Counsel for the appellant has also argued that section 44 does not apply to the case of a dissolved firm. No such question was presented in the petition nor was it raised before the single judge. Accordingly, we would not allow it to be raised for the first time in appeal. Counsel for the respondent has submitted that as the appellant had the alternative remedy of an appeal against the imposition of a penalty upon penalty, we should decline to interfere at his instance. This plea was not raised before the single judge at the hearing of the petition. The learned judge decided the petition on merits. Again, we are taking the view that the imposition of the impugned penalty is invalid. In these circumstances we thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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