1. Five writ petitions had been filed to vacate the penalty orders against the petitioner for failure to pay the income tax, and A. S. Nos. 541, 542, 543, 544 and 545 of 1957 are against the orders dismissing the petitions. Another writ petition had been filed to vacate the proceedings following the certificate to recover the same amounts of the income tax under the Revenue Recovery Act, and A. S. 546/57 is against the order dismissing that petition. Therefore all the appeals raise same questions of law, that can be adjudicated by a common judgment.

2. The facts in the aforesaid cases are not disputed, and may briefly be stated. The appellant had been a Superintendent of Police, who had retired in 1940, and had been spending his time in studying Vedantha Philosophy. He had gathered a number of disciples, one such person being J. H. Levy. The aforesaid disciple used to come to Travancore from England at regular intervals, stay with the master for a few months, and have the benefit of the appellants teaching. He had an account in Lloyds Bank at Bombay, whose entire balance of Rs. 2,41.103-11-3 was on December 13, 1941, transferred to the credit of the account, which he had got the appellant to open in his name in the same bank; and thereafter, he put further sums into the appellants aforesaid account with the Lloyds Bank. The Income Tax authorities issued notices and reopened the appellants assessments to income tax for the assessment years 1121, 1122 and 1123. During the period the disciple had deposited in the appellants account with Lloyds Bank Rs. 13,304/-, Rs. 29,948/-, and Rs. 19,983/-; and the appellant had obtained transfers of Rs. 81,200/-, Rs. 47,000/- and Rs. 37,251/-from the Bombay account to his Trivandrum account in the respective years. In the proceedings mentioned earlier, the Income Tax Officer, Trivandrum, reassessed the appellant to fresh income tax on the amounts transferred to the Trivandrum account as the foreign incomes, and brought into the then Travancore State in the relevant assessment years. The appellants appeals from the aforesaid assessment orders were consolidated by the Appellate Assistant Commissioner into one appeal, and dismissed. The appellant then appealed to the Appellate Tribunal, but failed there as well. Thereafter, the following two questions were referred:

"(1) Whether the aforesaid receipts from John H. Levy constitute income taxable under the Travancore Income Tax Act, 1122

(2) Whether there are materials for the Tribunal to hold that the deposits into the assessees bank account in Bombay by John H. Levy from 1941 as aforesaid represented income that accrued to the assessee outside Travancore State

3. The Travancore-Cochin High Court, on March 8, 1956, answered the questions, the answer to the first being in the affirmative and the other in the negative, which have since been confirmed by the Supreme Court. (Vide P. Krishna Menon v Commissioner of Income tax - (35 ITR 48 [LQ/SC/1958/123] = 1959 KLJ 178 [LQ/SC/1958/123] )).

4. Before the aforesaid orders had been given by the High Court, the Income Tax Officer had begun proceedings and reassessed the appellant to tax for the next two assessment years 1125 and 1126. Against these assessments, appeals, we are told, had been filed before the Appellate Assistant Commissioner, which been decided against the assessee. He went in appeal to the Appellate Tribunal, and at that stage, the High Courts answers to the reference made for the earlier reassessments had been given. It has now been stated before us that the Appellate Tribunal had decided the appeal in view of the pronouncements of the Supreme Court referred to earlier.

5. Such is the earlier history of the five assessment orders for whose realisation the income tax authorities had started penalty proceedings. A show cause notice, dated September 17, 1955, was first issued why penalty proceedings should not be started in respect of the taxes for the assessment years 1121, 1122 and 1123, and similar notice was then given for the failure to pay the taxes assessed for the two subsequent assessment, years. The penalty finally levied, in aggregate, amounts to Rs. 7,607/-, and the appellant filed five writ petitions, claiming the aforesaid penalty amounts to be without jurisdiction, beyond the period allowed under the statute, and without proper orders on the stay application under Section 45 of the Indian Income Tax Act. Our learned brother Mr. Justice Joseph, saw no substance in the objections and dismissed the writ petitions, against which judgments A. S. Nos. 541/57, 542/57 543/57, 544/57 and 545/57 have been preferred.

6. The appellants sixth writ petition in the High Court had challenged the proceedings began by the Collector of Quilon under the Revenue Recovery Act. These proceedings began, because of a letter, whereby the Collector of Trivandrum

requested the Collector of the other district to recover the income tax for the aforesaid years from the appellants properties. The certificate was sent by the Income Tax Officer on January 15, 1954 and the proceedings under the Revenue Recovery Act were begun about the same time. The appellant filed O. P. 38/55 to vacate those proceedings; and, on the petition being dismissed had filed A. S. 546/57. All these six appeals had been referred to the Full Bench, because they raised the issue of whether penalty proceedings could be taken after the State Income Tax Act, under which the appellant was liable to be assessed, been repealed in 1950. The issue was since decided by the Supreme Court in favour of such proceedings being legally allowed, and thereafter the appeals were sent to the Division Bench for deciding other points. The assessees learned advocate in all the six appeals has taken two grounds for getting the proceedings vacated. He has argued that:

(1) The taxing authorities had erred in levying the income tax on amounts, that were not taxable under the Travancore Income Tax Act and therefore legal proceedings to realise such a tax are beyond jurisdiction and nullity; and that

(2) The prayer to stay the collection of the tax under Section 45 of the Income Tax Act had been rejected in improper exercise of powers.

7. These are the only two grounds urged to vacate the proceedings to recover the penalty, as well as to recover the income tax from the properties belonging to the assessee. There is, however, the initial objection to the appellants claiming any redress by writ petition; for, the enactment, under which the penalty been levied, had provided a complete machinery for getting redress against incorrect orders and he has not availed himself of such a procedure. That apart it cannot be disputed that the taxing authorities have the jurisdiction to enforce the liability to pay the tax that had been assessed, and it covers the authority to realise the amount notwithstanding appeals having been filed against the assessment orders. It follows that so long as the decision on the appellants being liable to pay the tax stood, the liability to pay would be enforceable, unless there be stay order under the Act. That is clearly brought out by Sections 45 and 66(7) of the Income Tax Act. Under the former, the taxing officer can stay the realisation of the tax when the appeal is filed under Section 30 to the Assistant Commissioner, and during the pendency of the further appeal, there is no other provision as to stay. Indeed, Section 66(7) of the Income Tax Act shows that the liability to pay can be enforced; and, on the tax amount being modified or otherwise found incorrect, the right of reimbursement arises. It follows that during the period the order of tax assessment stands the several provisions under the Act regarding enforcing the liability to pay the tax are operative, and the taxing authorities can, enforce realisation through any of the compulsory methods. That being the principle, the facts of the particular cases before us are that the orders which these writ petitions seek to vacate, were made, when the assessment orders by the taxing authority were still operative; for the answers in favour of the appellant in the reference to the High Court were given in March, 1956, which was several months later than the order levying the penalty as well as the order to recover the tax from the properties belonging to the assessee. It follows that the liability to pay the tax existed, when the machinery for compulsory realisation was put into operation; and, therefore, steps taken were to realise the tax legally due. It is equally clear that no legal error is apparent on the face of the record to justify any writ being issued; for, in view of the later pronouncement, certain adjustments in the earlier orders would be necessary, but the income tax authorities have done nothing to show that such adjustments, if claimed and permissible under law, would not be given to the appellant. Therefore no error of law appears to justify these appeals being allowed, and we see no force in the first ground.

8. Coming to the next ground of failure to exercise power under section 45 of the Income Tax Act, so far as the two later assessment years are concerned, it appears that the Income Tax Officer had allowed stay on the appellant paying half the tax amount. In such circumstances we think this ground is not sustainable; for, in exercise of our powers under Article 226, we cannot direct the authority vested with the jurisdiction as to how they should exercise it, or the exercise be malafide, or perverse. No such grounds exist in these cases to justify our interference, with the result that the second ground also fails. Those being the only two arguments urged in support of the appeals and they being without force, these appeals are dismissed with costs Rs. 100/- in each.