Appeal No 261 of 1958
Appeal by special leave from the judgment and order dated November 6 1956 of the Mysore High Court in Writ Petition No 215 of 1956
section N Andley J B Dadachanji Rameshwar Nath and P L Vohra for the appellants
K N Rajagopal Sastri and D Gupta for the respondent
July 22
The Judgment of the Court was delivered by HIDAYATULLAH J
This appeal has been filed with the special leave of this Court against a decision of the High Court of Mysore by which it dismissed in limine an application by the appellants under article 226 of the Constitution for a writ of prohibition or some other appropriate writ against the Income tax Officer Bellary Special Circle Bangalore
The facts of the case are as follows
For the assessment year 1948 49 the appellants failed to file a return within the prescribed time and the Income tax Officer acting under section 281a of the Indian Incometax Act issued a notice to them to show cause why penalty should not be imposed
In answer to this notice the appellants filed a written reply and the Income tax Officer proceeded to levy a penalty of Rs 16000 without affording a hearing to them as required by the third sub section of section 28 of the Income tax 73 Act
The matter was taken up in appeal before the Appellate Assistant Commissioner of Income tax who pointing out that an opportunity of being heard was not granted to the appellants held that the order was defective
He therefore set aside that order and directed the refund of the penalty if it had been recovered
On receipt of the order the Income tax Officer issued a further notice calling upon the appellants to appear before him so that they might be given an opportunity of being heard
He also intimated that if no appearance was made then he would proceed to determine the question of penalty taking into consideration only the written statement which had been filed earlier
Before however the Income tax Officer could decide the case the appellants filed a petition under article 226 of the Constitution for the issuance of the writs mentioned above
This petition was dismissed in limine by the High Court holding that the contention raised by the appellants may perhaps be raised before the Income tax authorities
The appellants thereupon applied for special leave to this Court and leave having been granted this matter comes up before us
There is no question here that the requirements of section 281a of the Income tax Act were not completely fulfilled
If the appellants had not filed their return as they were required by law to do the omission would attract cl
a of sub section
1 of section 28
We say nothing as to that
Sub section 3 of section 28 however requires that the penalty shall not be imposed without affording to the assessee a reasonable opportunity of being heard
This opportunity was denied to the appellants and therefore the order of the Income tax Officer was vitiated by an illegality which supervened not at the initial stage of the proceedings but during the course of it
The order of the learned Appellate Assistant Commissioner pointed out the ground on which the illegality proceeded and his order directing the refund of the penalty if recovered connot but be interpreted as correcting the error and leaving it open to the Income tax Officer to continue his proceedings from the stage at which the illegality occurred
10 74 No express remand for this purpose as is contended was necessary
Our attention was drawn to a decision of a learned Single Judge of the Kerala High Court reported in Jos Chacko Poothokaran vs I T O Ernakulam Circle1 in which in similar circumstances it has been held that since an appeal was not taken by the Commissioner of Income tax to the Appellate Tribunal under sub section
2 of section 33 the order of the Appellate Assistant Commissioner became final and the Incometax Officer could no longer proceed to reassess the penalty
The reason given is in our opinion beside the point
What the Appellate Assistant Commissioner did was to vacate the order and direct refund of the penalty in view of an illegality which had occurred during the course of the assessment proceedings
On receipt of the record it was open to the Incometax Officer to take up the matter from the point at which the illegality supervened and to correct his proceedings
It was pointed out in the course of the statement of the case by the appellants that such proceedings could only be taken during the course of assessment proceedings and those proceedings are concluded
In our opinion the notice issued to the appellants to show cause why penalty should not be imposed on them did not cease to be operative because the Appellate Assistant Commissioner pointed out an illegality which vitiated the proceeding after it was lawfully initiated
That notice having remained still to be disposed of the proceedings now started can be described as during the course of the assessment proceedings because the action will relate back to the time when the first notice was issued
In our opinion the Income tax Officer is well within his jurisdiction to continue the proceedings from the stage at which the illegality has occurred and to assess the appellants to a penalty if any which the circumstances of the case may require
The appeal is accordingly dismissed with costs
Appeal dismissed


Summary:
The petitioner the Editor of the Searchlight an English daily newspaper published from Patna was called upon to show cause before the Committee of Privileges of the Bihar Legislative Assembly why he should not be proceeded against for the breach of privilege of the Speaker and the Assembly for publishing an inaccurate account of the proceedings of the Legislative Assembly
He moved this Court under article 32 of the Constitution for quashing the said proceeding and the question for decision in substance was whether the said privilege conferred by article 1943 of the Constitution was subject to the fundamental 97 rights of a citizen under article 191a of the Constitution
This Court by a majority found against the petitioner
Thereafter the Assembly was prorogued several times the Committee of Privileges reconstituted and a fresh notice was issued to the petitioner
By the present petition the petitioner in substance sought to reopen the decision raise the same controversy once again and contend that the majority decision was wrong
The question was whether he could be allowed to do so
Held that the general principles of res judicata applied and the judgment of this Court could not be allowed to be reopened and must bind the petitioner and the Legislative Assembly of Bihar and the reconstitution of the Committee of Privileges in the meantime could make no difference
Raj Lakshmi Dasi vs Banamali Sen   applied
Since this Court had held that the Legislature bad the power to control the publication of its proceedings and punish any breach of its privilege there could be no doubt that it had complete jurisdiction to carry on its proceedings in accordance with its rules of business and a mere non compliance with rules of procedure could be no ground for interference by this Court under article 32 of the Constitution
Janardan Reddy vs The State of Hyderabad   referred to
Prorogation of the Assembly does not mean its dissolution and the only effect it has is to interrupt its proceedings which can be revived on a fresh motion to carry on or renew them
It was therefore not correct to contend that since the Assembly was prorogued several times since after the alleged breach of privilege the proceeding must be deemed to be dead