TMI Blog1974 (4) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year 1960-61 under section 23(3) of the Indian Income-tax Act, 1922. The total income computed by the Income-tax Officer for the said assessment year is Rs. 6,91,067. The company preferred an appeal against the assessment order to the respondent No. 3, the Inspecting Assistant Commissioner of Income-tax, Range V. In the course of the proceedings before respondent No. 3, the company was served with a notice under section 274(2) read with section 271 of the Income-tax Act, 1961, for the assessment year 1960-61, as in the opinion of respondent No. 3, the company had concealed the particulars of its income or deliberately furnished inaccurate particulars of such income for the assessment year 1960-61. Thereafter, by his order dated February 24, 1967, respondent No. 3 imposed a penalty of Rs. 1,04,000 upon the company under section 271(1)(c) of the Income-tax Act, 1961. Being aggrieved by the said order, the company preferred an appeal before the Income-tax Appellate Tribunal. The company also moved an application before this court under article 226 of the Constitution challenging the impugned order of penalty dated February 24, 1967, on the ground that the proceedings for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this court as also the decisions of the Bombay and the Gujarat High Courts stood impliedly overruled by the said decision of the Supreme Court in Jain Brothers's case . In view of the said Supreme Court decision directly on the point, K. L. Roy J. dismissed the application of the company under article 226 and discharged the rule. Thus the attempt of the company to get the same relief from this court on the basis of the said High Court decisions was foiled and the company did not get any opportunity to represent its case against the penalty on merits before the Tribunal. The certified copy of the judgment of K. L. Roy J. discharging the rule was obtained by the company on February 23, 1970. It is alleged that, thereafter, the managing director of the company, Mr. Bhagwandas Jaiswal, under whose direction the manager and other officers of the company had to proceed, was lying so seriously ill that he could not even speak until the end of the month of November, 1970. Further, it is alleged that Mr. Upadhya, the manager of the company, was also away from Calcutta on a long leave. On January 7, 197l, the company made an application before the Appellate Tribunal praying for recalli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding a case inter Partes; they are assessing or estimating the amount on which, in the interests of the country at large, the taxpayer ought to be taxed. " In Commissioner of Income-tax v. Rai Bahadur Hardutroy Motilal Chamaria, it has been observed by the Supreme Court that it is well established that an assessee having once filed an appeal cannot withdraw it. In other words, the assessee having filed an appeal and brought the machinery of the Act into working cannot prevent the Appellate Assistant Commissioner from ascertaining and settling the real sum to be assessed, by intimation of his withdrawal of the appeal. Even if the assessee refused to appear at the hearing, the Appellate Assistant Commissioner can proceed with the inquiry and if he finds that there has been an under-assessment, he can enhance the assessment. The Supreme Court has also referred to the above decision of the Court of Appeal in King v. Income-tax Special Commissioner. It thus follows from the decisions cited above that the assessee cannot withdraw an appeal. Consequently, the appellate authority cannot allow such withdrawal as has been observed in the said decision of the Court of Appeal, that the tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling the application for restoration within a reasonable time after the previous rule was discharged by K. L. Roy J. The main reason was that the certificate which was produced before the Tribunal was lacking in details as to when the managing director came under the treatment of the doctor who issued the certificate. In this court, a medical certificate has been annexed to the writ petition as annexure " K ". It appears from this certificate (annexure " K ") that B. D. Jaiswal, the managing director of the company, was confined to bed on account of enlarged prostate and he had to undergo a surgical operation. He had an attack of paralysis of the right side of the body including the face due to high blood-pressure, in the month of July, 1967, as a result of which he was completely bed-ridden since then and could not speak properly. It has been certified by the doctor that from December, 1967, to November, 1970, the condition of Jaiswal was grave and he was advised complete rest in bed. The correctness of this certificate has been denied by the respondents. I do not, however, find any reason to disbelieve the certificate granted by the medical practitioner. In this connection, it ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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