TMI Blog2007 (8) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... nd which have given rise to the present writ petition, may, in brief, be set out as follows: Petitioner No. 1, namely, M/s. Nandalal Parshuram, a registered partnership firm under the Partnership Act, owns a tea estate known as Sookerating Tea Estate, Doomdoma, Assam, and is engaged in the business of plantation, manufacture and sale of tea, petitioner No. 2 being a partner of the petitioner-firm. Respondent No. 1, namely, the Agricultural Income-tax Officer, Assam, assessed the agricultural income-tax payable by the petitioner-firm, for the assessment years 1986-87, 1987-88 and 1990-91, at Rs. 4,80,559, Rs. 3,33,342 and Rs. 77,627, respectively. Having so completed the assessment of agricultural income-tax, respondent No. 3 raised a demand, on March 30, 1995, for payment of Rs. 4,80,559, Rs. 3,33,342 and Rs. 77,627 under section 23 of the Assam Agricultural Income-tax Act, 1939, (in short, "the said Act"), directing the petitioner-firm to make payment of the assessed amount by April 30, 1995. By letter, dated December 8, 1995, issued by respondent No. 1, the petitioner-firm was informed that the petitioner-firm was in default of payment of Rs. 4,80,559, Rs. 3,33,342 and Rs. 77,6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il disposal of the appeal. Reacting to the letters of the petitioner-firm dated February 19, 1998, aforementioned, respondent No. 3 clarified, vide letter, dated March 11, 1998, that while the assessment of the agricultural income-tax, for the assessment year 1986-87, was Rs. 4,80,559, the interest and penalty payable thereon were Rs. 81,841 and Rs. 4,80,500, respectively, making a grand total of liability of the petitioner-firm, for the assessment year 1986-87, to the tune of Rs. 10,42,903 and, similarly, in respect of assessment years 1987-88 and 1990-91, while the tax assessed was Rs. 3,33,342 and Rs. 2,64,319 respectively, the interest and penalty payable, in respect of the assessment year 1987-88, were Rs. 1,10,449 and Rs. 3,33,300 respectively, and that the interest and penalty payable, for the assessment year 1990-91, was Rs. 57,405 and Rs. 2,64,300, respectively. Thus, the total sum payable by the petitioner-firm in respect of assessment years 1987-88 and 1990-91 was to the tune of Rs. 7,77,091 and Rs. 5,86,025, respectively. By yet another letter, dated March 18, 1998, respondent No. 3 informed petitioner No. 1 that without any stay order having been passed in the appeal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deemed to be in default: Provided that the Superintendent of Taxes or Agricultural Income-tax Officer may, in respect of any particular assessee and for reasons to be recorded in writing, extend the date of payment of dues or allow such assessee to pay the same by instalments and in such cases the assessee shall not be deemed to be in default, but in all such cases the provisions of sections 35C, 35D and 35E shall apply. (2) Where an assessee is in default, the Superintendent of Taxes or Agricultural Income-tax Officer may, in his discretion, direct that in addition to the amount due, a sum not exceeding that amount shall be recovered from the defaulter by way of penalty: Provided that no order of imposition of penalty under this section shall be made unless the assessee has been heard or has been given a reasonable opportunity of being heard. (3) Where an assessee is in default, the Superintendent of Taxes or Agricultural Income-tax Officer may order that the amount due shall be recoverable as an arrear of land revenue and may proceed to realise the amount as such." From a close reading of section 36, what transpires is that if the payment of dues is not made on or befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion cannot be arbitrarily exercised. The exercise of power to impose penalty is circumscribed inasmuch as the authority concerned must, before imposing the penalty, give an opportunity of hearing to the assessee. Having given such an opportunity, the authority concerned shall take into account all relevant circumstances and eschew from consideration every irrelevant circumstance and, then, determine as to whether the assessee needs to be saddled with the liability of penalty for non-payment of his dues and if so, what would be the extent of such a penalty? The authority concerned must, thus, take a decision, in the matter of imposition of penalty, objectively, upon consideration of all relevant factors. In the light of the law discussed above, when I revert to the factual matrix of the present case, what attracts the eye, most prominently, is that notwithstanding the fact that the letters, dated December 18, 1995, were issued by the respondents, demanding payment of Rs. 4,80,559, Rs. 3,33,342, and Rs. 77,627 (which was revised to Rs. 2,64,319) for the assessment years 1986-87, 1988-89 and 1990-91, respectively, with a caution that the demands, if not immediately met, would entail ..... X X X X Extracts X X X X X X X X Extracts X X X X
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