Judgment

RAMASWAMI, J.:- In these appeals which have been heard together a common question of law arises for determination, that is, whether the expression "any person who has not hitherto been assessed" in Section 18A (3) of the Income-tax Act, 1922 (hereinafter called the Act) after the Income Tax Amendment Act (Act 67 of 1949) should be interpreted so as to include a person who has only been provisionally assessed under Section 23B of that Act.

2. The respondents in these appeals are four persons - Mani Ram, Jagmohan, Kishandas, Bhagirathmal - partners of Shri Kishan Das, Dhankutti, Kanpur. They were members of a joint Hindu family carrying on business until they became divided in the middle of assessment year 1953-54. Thereafter they were carrying on the business in partnership. For the year 1953-54, the firm submitted a return showing loss. But in the next succeeding year 1954-55 it disclosed a profit and submitted a return. All the four partners filed returns individually on 27-9-1954 and they were provisionally assessed on their returns on 14-10-1954. But the regular assessment was made for this year only on 27-2-1958. The firm continued to make profits in the subsequent years 1955-56, 1956-57, 1957-58 and 1958-59 and the partners filed returns for their income for each of these years and were regularly assessed for these years under Section 23 sometime after 27-2-1953. The assessment order for 1958-59 was in fact made on 19-2-1959. It is not disputed that none of the four partners sent any estimate of the tax payable on their income as required by Section 18A of the Income Tax Act, 1922 or pay the tax in advance. Therefore, the Income-tax Officer, Kanpur while assessing them under Section 23 of the Act held that they were liable to pay interest under Section 18A (8) and determined the amount payable by each in respect of each of the years on the basis of the income found taxable in the regular assessment. In addition he applied the provisions of Section 18A (9) (b) and imposed a penalty for each year of assessment by virtue of Section 28 read with Section 18A (9) (b) of the Act. The four partners preferred appeals to the Appellate Assistant Commissioner on the ground that the levy of interest and penalty was unauthorised. But the appeals were dismissed. The partners applied in revision to the Commissioner of Income-tax under Section 33A (2), but the revision applications were dismissed. The respondents thereafter moved the Allahabad High Court for grant of a writ to quash the orders of the Income-tax Officer and of the Appellate Assistant Commissioner in appeal. The applications for writ were allowed by Mr. Justice S. C. Manchanda who held that Section 18A (3) could not apply to the facts of the case as there had been a provisional assessment under Section 23B in the year 1954. Against the decision of the Singe Judge the appellants preferred appeals before the Division Bench. These appeals were dismissed by a common judgment of the Allahabad High Court dated 25th March, 1963. The present appeals are brought to this Court by special leave from the judgment of the Allahabad High Court dated 25th March, 1963 in the batch of appeals affirming the judgment of the Single Judge dated 25th May, 1956, in C. W. M. No. 1591 of 1962 and the connected writ applications.

3. It is necessary at this stage to set out the provisions of Sections 18A, 23 and 23B of the Income-tax Act, 1922 as they stood at the material time:

"18A (I) (a). In the case of income in respect of which provision is not made under Section 18 for deduction of income-tax at the time of payment, the Income-tax Officer may, on or after the 1st day of April in any financial year, by order in writing, require an assessee to pay quarterly to the credit of the Central Government on the 15th day of June, 15th day of September, 15th day of December and 15th day of March in that year, respectively, an amount equal to one-quarter of the Income-tax and Super-tax payable on so mu