Kapur, J.:— The petitioners in this case, The Lord Krishna Sugar Mills Limited, move for the issue of an appropriate writ commanding respondent No. 1, the Income-tax Officer, Ambala, to forbear from taking any steps or further steps for enforcing the Notice of Demand dated the 6th October, 1951, or the order contained in the letter dated the 2nd July, 1952.

2. The sole business of the petitioners is at Saharanpur but its registered office was at Lahore and upto the year 1947 it was subject to the jurisdiction of the Income-tax Officer, Lahore. Due to disturbances before the partition of the country the registered office was shifted to Rupar.

3. The accounting period of the petitioners is from the 1st June of one year to the 31st May of the following year. They filed three returns for the accounting periods from the 1st June, 1944, to the 31st May, 1945, from the 1st June, 1945, to the 31st May, 1946, and from the 1st June, 1946, to the 31st May, 1947. The subject matter of the dispute in the present case is the accounting period from the 1st June, 1945, to the 31st May, 1946, the assessment year being 1947–48. In regard to this year the Income-tax Officer found certain defects in the accounts and did not accept them. The cash book and ledger for the period 6th December, 1945, to the 12th January, 1946, and vouchers from the 1st June, 1945, to the 12th January, 1946, were not produced before him. The Income-tax Officer also required the production of a copy of a judgment in liquidation proceedings given by Teja Singh, J., and also a copy of the petition for winding-up filed by Shrimati Ram Murti Devi. In this return the profit shown by the petitioners was Rs. 1,963 only. On the 30th September, 1951, when the assessment was made the Income-tax Officer found the net income to be Rs. 7,62,363 and imposed a tax of Rs. 3,33,533-13-0. He acted under Section 23(4) of the Income-tax Act. Notice of demand for this sum was sent on the 6th October, 1951, but the petitioners made an application to the Income-tax Officer under Section 27 of the Income-tax Act for cancellation of the assessment. On the 17th November, 1951, this was dismissed and an appeal was taken to the Appellate Assistant Commissioner of Income-tax. He dismissed the appeal on the 17th March, 1952, but remarked in the course of his order that the order calling for the judgment of Mr. Justice Teja Singh and a copy of the petition for winding-up was not justified. In May, 1952, an appeal was filed in the Appellate Income-tax Tribunal which is still pending. As against the original order of assessment an appeal was taken to the Appellate Assistant Commissioner of Income-tax in October, 1951, and that is still pending.

4. An application was made to the Income-tax Officer by the petitioners praying that they may not be treated defaulters under Section 45 of the Income-tax Act and that the recovery of the income-tax be kept in abeyance till after their appeal was decided. This relief was nothing more than an application for stay of recovery of income-tax. On the 26th October, 1951, the Income-tax Officer ordered the income-tax to be paid by monthly instalments—two of Rs. 50,000 each and the next two of Rs. 1,00,000 each and the balance’ in the month following the last instalment. As nothing was paid on the 26th January, 1952, the Income-tax Officer imposed a penalty of Rs. 20,000 under Section 46 of the Income-tax Act. The petitioners took the matter to the Inspecting Assistant Commissioner of Income-tax on the 11th February, 1952, and he replied by telegram asking them to pay Rs. 1,00,000 and then their application would be considered. On the 15th February, 1952, they moved the Commissioner of Income-tax and he gave them time to pay up by the 10th March, 1952, and then extended the time to the 20th March. On the 17th March, 1952, the petitioners applied to the Central Board of Revenue and an ad interim stay was granted on the 22nd March, 1952, but this stay was vacated on the 19th June, 1952, and the application of the petitioners was rejected. On the 2nd July, 1952, the Income-tax Officer wrote to the petitioners to pay up the income-tax by 8th July, 1952, failing which a penalty will be imposed.

5. On the 9th July, 1952, the petitioners filed an application for writ here which was heard by a Division Bench on the 9th July and then on the 10th July and was adjourned for a fortnight. On the 24th July, 1952, a rule was issued by this Bench and a stay was also granted.

6. On the 8th July, 1952, the petitioners again approached the Income-tax Officer and it appears they also approached the Commissioner on the 16th July by a petition and prayed for the stay of recovery of income-tax. By a letter dated the 25th July, 1952, the Commissioner again fixed instalments for payment—Rs. 50,000 per month for three months of July, August and September, 1952, and the payment of the balance was stayed for three months and it was to be paid by monthly instalments of Rs. 60,000 in January, February and March, 1953, and the balance to be paid by 31st March, 1953.

7. Counsel for the petitioners submits that the Income-tax Officer has not exercised his discretion properly in accordance with sound judicial principles and he should be commanded to order the stay of recovery of income-tax. He has pointed out to us the defects which according to him existed in the order of assessment dated the 30th September, 1951, the main objections being that the Income-tax Officer was affected by the non-production of the cash book and the ledger from 6th December, 1945, to 12th January, 1946, and of vouchers from 1st July, 1945, to 12th January, 1946, and for failure to produce a copy of the judgment of Mr. Justice Teja Singh and the petition for winding-up by Shrimati Ram Murti Devi, and also for taking into consideration the profits made by another concern which is situate in the same area. Whether these reasons for rejecting the accounts of the petitioners were sound or otherwise is not for us to say at this stage. The fact remains that he applied Section 23(4) of the Income-tax Act and that is the subject-matter of an appeal before two tribunals and we cannot at this stage go into the matter. But argues counsel that having misdirected himself in regard to these matters the Income-tax Officer did not properly appreciate the application made by the petitioners and therefore has not exercised his discretion properly and in accordance with sound judicial principles. He has also submitted that the Income-tax Officer did not exercise his jurisdiction bona fide and acted capriciously and has taken into consideration extraneous matters in so far as he was swayed by the defects that I have pointed out already. On these premises he has submitted that a writ should issue and he has relied on certain passages from Basu's Commentary on the Constitution of India at page 546. He has also referred to two judgments, the first one is R. v. Cotham 1898 1 Q.B 802., where a mandamus was issused commanding the justices to hear and determine the matter because they had disregarded the provisions of a statute and “must have acted upon some considerations altogether outside that statute, they had not heard and determined the matter according to law”. But there is no such thing in the present case. The next case he has relied upon is Sussannah Sharp v. Wakefield [1891] A.C 173., but I do not see how that case helps the petitioners, as there the licensing justices refused to renew a license on the ground of the remoteness from police supervision and the character and necessities of the neighbourhood, and all Courts right from the quarter Sessions up to the House of Lords refused to interfere with this decision. At page 181 Lord Halsbury, L.C, said—

“The legislature has given credit to the magistrates for exercising a judicial discretion—that they will fairly decide the questions submitted to them, and not by evasion attempt to repeal the law which permits public-houses to exist, or evade it by avoiding a plain exposition of the reasons on which they act.”

8. The learned Advocate-General first of all referred to Section 45 of the Income-tax Act which deals with payment of taxes and according to this the tax shall be paid within the time, at the place and to the person mentioned in the notice…… and any assessee failing to pay shall be deemed to be in default, “provided that, when an assessee has presented an appeal under Section 30, the Income-tax Officer may in his discretion treat the assessee as not being in default as long as such appeal is undisposed of…………….” It is submitted by the Advocate-General that as far as the payment is concerned the section is imperative and requires that the amount shall be paid. The discretion, if any, is in the matter of declaring a person to be or not to be in default, and he has referred to Sampath Iyengar's Indian Income-tax Act, page 1021, paragraph 1088, the purport of which is that there is now power of stay and although such a power was recommended to be vested in Assistant Commissioners and Appellate Tribunals by an Enquiry Committee, it was not put in the Act.

9. The Advocate-General also submits that the Income-tax Officer in the present case has exercised a discretion and it cannot be interfered with by a writ under Article 226 of the Constitution of India. He has first relied on para 1279 of 9th Volume of Halsbury's Laws of England, Hailsham Edition, at page 751, where it is stated:—

“A writ of mandamus will be granted ordering that to be done which a statute requires to be done,…………it must appear that the statute in question imposes a duty, the performance or non-performance of which is not a matter of discretion, and if a power or discretion only, as distinct from a duty, exists a writ of mandamus will not be issued by the Court.”

10. He then referred to para 1296, at page 764, where the law is stated in the following words:—

“Where………any other tribunal of a judicial character have in fact heard and determined any matter within their jurisdiction, no mandamus will issue for the purpose of reviewing their decision. The rule holds good even though such decision is erroneous not only as to facts but also in point of law; and although the particular circumstances of the case are such that there is only one way of performing the duty in question.”

11. He also relied on para 1301 where certain cases are mentioned dealing with the question of the exercise of discretion.

12. In Frederic Guilder Julius v. Lord Bishop of Oxford, Earl Cairns, L.C, observed:—

“I will only add that if I am right in holding that the bishop has under the statute, a discretion as to proceeding or not proceeding, in the way in which the appellant calls upon him to do, your Lordships have not, as it seems to me, any occasion or indeed any right to examine into the manner in which, or the principles upon which, that discretion has been exercised. For the exercise of that discretion the bishop, and the bishop alone, is responsible, and it would, in my opinion, be inconsistent to hold that his discretion is an answer to the application for a mandamus, and at the same time, on that application, to criticise the grounds upon which that discretion has been exercised.” In a later judgment of the House of Lords in John Derby Allcroft v. The Lord Bishop of London, Lord Halsbury, L.C, said:—

“But it is obvious that, to justify any writ of mandamus, it must be made to appear that the bishop has not exercised the jurisdiction which the statue has vested in him. Your Lordships have nothing to do with the question whether his judgment is right or wrong. Your Lordships would be exceeding your own jurisdiction if you were attempting to review a judgment, the jurisdiction to form which the Legislature has confided to the bishop and to the bishop alone.”

13. In R. v. fustices of Kingstone, it was held that a Court will not by a mandamus order a judicial tribunal to act in a particular manner. At page 591 Channell, J., stated the law in the following words:—

“I think also that even where the facts are all admitted, so that in the particular circumstances of a particular case as my brother has pointed out in this case there happens to be but one way of performing that duty, still the mandamus goes to perform the duty, and not to perform it in a particular way.”

14. In Section 45 of the Specific Relief Act the principles are set out which are applicable in the matter of petitions under Article 226, see Civil Writ No. 279 of 1951. A mandamus issues where the doing or forbearing of an act is clearly incumbent.

15. In America also the law is the same. See Hart's Introduction to Administrative Law, page 440. It has been decided by the Courts in America in regard to issuance of a writ of mandamus that the leading principle is that mandamus will be gtanted to command the performance of a ministerial act but never to control the exercise of discretion : Roberts v. United States 176 U.S 221., Ness v. Fisher 223 U.S 683.

16. In ICC v. Humboldt Steamship Co. 224 U.S 474., it was held that it (mandamus) may be directed against a tribunal or one who acts in a judicial capacity, to require it or him to proceed, the manner of doing so being left to his or its discretion. This case illustrates the use of mandamus to set an administrative authority possessed of discretionary duties in motion, but not to direct how such discretion shall be exercised.

17. All that the petitioners seem to object to is that the order of the Income-tax Officer is bad but that does not seem to be any reason for exercising jurisdiction in their favour in regard to a matter where discretion has been exercised by the Income-tax Officer. The main attack of the petitioners seems to be that Section 23(4) of the Income-tax Act has been wrongly applied by the Income-tax Officer but that has been affirmed by the Appellate Assistant Commissioner of Income-tax. But even if the order is wrong the proper way of attacking that would be by observing the procedure prescribed in the Income-tax Act and by statement of the case to this Court. As was observed in Elverton's case, “the orderly administration of justice will be better subserved by declining to exercise jurisdiction in the mode suggested” by the petitioner. Under Section 45 whatever discretion there is is of the Income-tax Officer and he having exercised it in a particular manner which in my opinion is neither mala fide, nor capricious, nor done for collateral purposes, nor has he taken matters into consideration which are extraneous to the issue, it is not open to this Court to interfere in its supervisory jurisdiction.

18. At this stage I may deal with a judgment of Bose, J., of Calcutta, Ladhuram Tapari v. B.K Bagchi, where the learned Judge issued a writ of mandamus directing the stay of recovery of income-tax as there was a substantial question as to the constitution of the assessee firm and the Income-tax Officer was not sure and had made protective assessments in respect of five other firms in order to avoid any question of limitation in case the main assessment made by him was set aside by the appellate authority. With very great respect I am unable to agree with the rule laid down by the learned Judge because when exercising his discretion under Section 45 of the Income-tax Act the Income-tax Officer has not to look to the correctness of his own order of assessment. There are other considerations which have to be seen at the time of declaring an assessee to be a defaulter or otherwise and for the reasons that I have given already. I am, therefore, of the opinion that this petition fails and is dismissed with costs. Counsel's fee Rs. 200.

Soni, J.— I agree. It is a grave thing to interfere in the orderly administration of justice by the ordinary or special Tribunals constituted by the Legislature. If these Tribunals or the functionaries appointed under the Special Acts do not perform their duties they may be compelled by an appropriate writ to do so. Where, however, they are acting within the limits of the powers assigned to them by the Legislature and have exercised their discretion, this Court will not sit in judgment over them and will not ordinarily interfere unless the discretion has been exercised so capriciously or in such an outrageous manner as to attract the extraordinary jurisdiction of this Court.

19. Petition dismissed.