LexM/S. GUDUTHUR BROS. versus THE INCOME TAX OFFICER , SPECIAL CIRCLE, BANGALORE
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• 1 S.C.R. SUPREME COURT REPORTS 71 . charge against a police officer above the rank of a con- stable under the Police Act and such a magistrate has to 'be a )!'irst Class Magistrate. These sections no- where. exclude departmental enquiry. All that they lay down is that where. an offence punishable under the Police Act is committed by a police officer above the ra,nk of a constable and is to be tried by a court oflaw it has to go before a :First Class Magistrate. That, however, does not mean that no departmentalenqu\iry can be held with respect to a matter where it is afiio possible· to prosecute a police officer under the Police . Act. There is no force in this contention also and it i~ hereby rejected. · ;: The appeal therefore fails and is hereby dismissed) but in the circumstances of this case we pass no ordef' as to costs. ' · Appeal dismissed. M/s. GUDUTHUR BROS. v. THE INCOME-TAX OFFICER, SPECIAL . CIRCLE, BANGALORE. / (S. K. DAS, M. HIDAYATULLAH and J. c. SHAH, JJ.) Income-tax-Assessment-Penalty-Imposition, 'by Income-tax Officer without reason.al!le opportunity given to assessee of being heard-Order set -aside on appeal and refund directed-No express . order of remand-Continuance of proceedings by the Income-tax Officer-Legality-Indian 1ncome-tax Act, z922 (II of .z922), ss. 28 (r)(a) and 28(3). The, appellants failed to file their return within the prescri- . bed time and on a notiCe issued under s. 28(r)(a)' of 'the Indian . Income-tax Act, 1922, to show cause why penalty should not be imposed on them, they filed a written reply. Without affording . them an opportunity of being heard as required by s. 28(3) of the Act the Incoi:ne'tax Officer· imposed a penalty on them. On . appeal the Appellate Assistant Commissiotier set aside the order . and direded refund of the penalty. Thereafter the Income-tax Officer issued a further notice giving an opportunity to the appel~ !ants of being heard. The appellants objected to this notice and ' -' Bhagat Singh v. The State of Punjab H1anchoo J. r960 July 2i • • 72 Sl!PREME COl!RT REPORTS [1961] contended that the Income-tax Olficer could no longer proceed to re-assess the penalty in the absence of an express order of Mfs. Gicdurhur·. remand by the Appellate 1\ssistant Commissioner whose order Bros. v. The income-tax Officer, Special C1,.clr, Bangalore had become final. Held, that where an order of imposition of penalty made by the Income-tax Officer under s. 28(1)(a) of the Indian Income- tax Act was vitiated, not by any initial illegality but by one \Vhich supervened during the course of the procL·tdings and the said order was yacated on appCal, the Income-tax Officer was well within his jurisdiction in continuing the proceedings from the stage at v.·hich the illegality had occurred and could re-assess the penalty t!wugh no express order of remand was made . jos Chacko Poothokara11 ''· Income-tax Officer, Ernakulam Cir- cle, [1957] 32 l.T.R. 648, not applied. C:iHL APPELi.ATE JURISDICTION: Civil Appeal No. 261 of 1958. Appeal by special leave from the judgment and ardor dated November 6, 1956, of the Mysore High ~ourt in Writ Petition No. 215 of 1956. S_ N. Andley, J.B. Dadachanji, Rameshwar Nath'and p_ L. Vohra, for the appellantH. · K. N_ Rajagopal Sastri and D. Gupta, for t.he res- pondent. 1960. July 22. The Judgment of the Court was delivered by Hidayatull•h ]. HIDAYATULLAH J.-This appeal has been filed '"ith the special lea1•e of this Court ag1>iust a decision of the High Court of Myore, by which it dismissed in limine an application by tho appellants under Art. 226 of the Constitution for a writ of prohibition or some other appropriate writ again8t the Income-tax Officer, 13ellary, Special Circle, Bangalore. The facts of the case are as follows. For the assess- ment year 1948.49, the appellant!! failed to file a rl't.urn within the prescribed time and the Income-tax Officer, acting under s. 28(l)(a) of tho Jndian Income- tax Act, issued a notice to them t-0 show cause why penalty should not be imposed. In answer to this notice, tho appellants filed a written reply and the Income-tax Officer procooded to levy a penalty of Rs. 16,000, without affording a hearing to them as required by the third sub-s. of s. 28 of the lucome-ta:x ' . 1 S.C.R. SUPREME COURT REPORTS 73 Ac-t. The matter was taken up in appeal before the r9M Appellate Assistant Commissionllr o
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