Judgment :- 1. The prayer in the petition is that this court should issue: "a Writ of Prohibition prohibiting the respondents from collecting the penalty of Rs. 650 levied by the I Additional Income-tax Officer, Kozhikode, by his order dated 30-11-53 in F. No. 83-V (Ext B), as modified by the Appellate Assistant Commissioner of Income-tax, Kozhikode Range. Kozhikode in I. T. A. No. 2465 of 1953-54 dated 16-2-1955 (Ext C) and upheld by the Commissioner of Income-tax, Madras in I. T. R. No. 327/55 dated 10th October 1955 (Ext. D)". The 1st respondent is the Commissioner of Income-tax, Madras and the 2nd, the First Additional Income-tax Officer, Kozhikode. 2. In Ext. B, an order under S.28 (1) (a) & (b) of the Indian Income tax Act, 1922, the 2nd respondent said: "A clear case of deliberate default exists in this case. With the previous approval of the Inspecting Assistant Commissioner of Income-tax, Coimbatore, I levy a penalty of Rs 1300/-. This should be paid on or before 30-12-1953". 3. The petitioner appealed to the Appellate Assistant Commissioner of Income-tax, Kozhikode Range, Kozhikode, and succeeded in getting the penalty reduced to Rs. 650/-. He said: "After carefully going through the records, I am quite convinced that the default committed under S.22 (2) was not a deliberate one...Hence, in my opinion, no penalty is called for so far as the default under S.22 (2) is concerned" "The default under S.22 (4) does not however stand on the same footing I am therefore quite satisfied that the failure to comply with the provisions of the notice issued under S.22 (4) was without reasonable cause. I would therefore uphold the action of the Income-tax Officer in resorting to the penal provisions of the Act so far as the default under S.22 (4) is concerned. The Income-tax Officer has imposed a penalty of Rs. 1300 which works out to roughly 2/3rds of the maximum penalty. Since I have held that no penalty is leviable in respect of the default committed under S.22 (2), I would reduce the penalty imposed in this case by half. The result is that the appeal is partly allowed. The penalty is reduced to Rs. 650/-. Any amount paid in excess should be refunded". (Ext. C). 4. The petitioner then moved the 1st respondent for a revision of the order under S.33 A (2) of the Indian Income-tax Act, 1922. The result is that the appeal is partly allowed. The penalty is reduced to Rs. 650/-. Any amount paid in excess should be refunded". (Ext. C). 4. The petitioner then moved the 1st respondent for a revision of the order under S.33 A (2) of the Indian Income-tax Act, 1922. He said: "This petition for revision is against the order of the Appellate Assistant Commissioner sustaining the penalty imposed under S.28 (1) (b) on 30-11-1953 for the assessment year 1951-52. There are no fresh facts for me to interfere in revision. The petition fails". (Ext. D) 5. S.28 of the Indian Income-tax Act, 1922, makes provision in the words of Kanga, for the imposition of a penalty on contumacious or fraudulent assessees. Sub-section (1) of that section (omitting the proviso thereto) is in the following terms "If the Income-tax Officer, the Appellate Assistant Commissioner or the Appellate Tribunal, in the course of any proceedings under this Act, is satisfied that any person (a) has without reasonable cause failed to furnish the return of his total income which he was required to furnish by notice given under sub-section (1) or sub-section (2) of S 22 or S.34 or has without reasonable cause failed to furnish it within the time allowed and in the manner required by such notice, or (b) has without reasonable cause failed to comply with a notice under sub-section (4) of S.22 or sub-section (2) of S.23, or (c) has concealed the particulars of his income or deliberately furnished inaccurate particulars of such income, he or it may direct that such person shall pay by way of penalty, in the case referred to in clause (a), in addition to the amount of the income-tax and super-tax, if any, payable by him, a sum not exceeding one and a half times that amount, and in the cases referred to in clauses (b) and (c), in addition to any tax payable by him, a sum not exceeding one and a half times the amount of the income-tax and super-tax, if any, which would have been avoided if the income as returned by such person had been accepted as the correct income". 6. 6. The first contention before me is that the Income-tax Officer (2nd respondent) was not "satisfied" that the petitioner had without reasonable cause failed to comply with the notice under sub-section (4) of S.22 in the course of any proceedings under the Act and that Ext. B is bad on that account. This contention is without substance. 7. The assessment order (Ext. A) was passed on 31-12-1951 and the entry in the order sheet for 31-12-1951 reads as follows: "Now there is clear default again. The assessee has neither filed a valid return nor has he responded to notice u/s 22/4. He is liable to penalty. Issue notice u/s 28 (1) (a). Issue order under u/s 23/4". This shows that the Income-tax Officer was satisfied in the course of the proceedings and not subsequent thereto. The fact that Ext. B is of 30-11-53 is immaterial and cannot affect the question. 8. In 1944 I. T. R.233 Gentle, J. said: All that S.28 requires is that there should be a discovery and the person discovering it is satisfied that an assessee has concealed particulars of his income or deliberately furnished inaccurate particulars, in the course of any proceedings under the Income-tax Act. There is nothing in S.28 from which it can be said that the notice under sub-section (3) must be given before the conclusion of the assessment, and attention has not been drawn to any other section in the Act by which such requirement is necessary". and Mc. Nair, J: "I agree. S.28 (1) provides that the Income-tax Officer, the Appellate Assistant Commissioner or the Appellate Tribunal must be satisfied in the course of the proceedings that so far as we are concerned in this case, a person has concealed the particulars of his income or deliberately furnished inaccurate particulars of such income. Any of those three authorities may then under S.28 (1) (c) direct that such person shall pay a penalty. As my learned brother has pointed out, any of those three persons has to be satisfied during the course of proceedings under the Act. It is sufficient under the provisions of S.28 that he be satisfied during the course of the proceedings, and if he is satisfied during the course of such proceedings he may direct the notice to issue upon the assessee to show cause why a penalty should not be imposed. It is sufficient under the provisions of S.28 that he be satisfied during the course of the proceedings, and if he is satisfied during the course of such proceedings he may direct the notice to issue upon the assessee to show cause why a penalty should not be imposed. There is nothing within the provisions of the Act to which my attention has been directed which makes it imperative upon the Income-tax Authorities to serve the notice for showing cause why a penalty should not be imposed during the course of any proceeding under the Act". I am in agreement with this view. 9. Kanga deals with the decision as follows: The Calcutta High Court has held that even the notice under sub-section (3) may be issued and the penalty proceedings may be started by the Income-tax Officer after the assessment is completed, and that it is not necessary that the penalty proceedings should be started during the pendency of those proceedings in the course of which the default of the assessee is discovered. The contrary view taken by the Lahore High Court in 1936 I.T.R. 217(221) is, it is submitted, incorrect". 10. Sub-section (3) of S.28 provides: "No order shall be made under sub-section (1) or sub-section (2) unless the assessee or partner, as the case may be, has been heard or his been given a reasonable opportunity of being heard". The second contention urged before me is that no notice was issued to the petitioner, that as a result he had been denied "a reasonable opportunity of being heard" and that Ext. B is unsustainable for lack of compliance with sub-section (3) of S.28. 11. In the petitioner's affidavit dated 3-10-1956 he stated: At the time when the Writ Petition came up for orders as to admission, this Hon'ble Court directed the petitioner to produce the notice received by the petitioner under S.28 of the Act. As my contention is that I was not served with any notice under S.28 of the Act, I applied to the Income-tax Officer, Kozhikode to furnish me a copy of the notice alleged to have been served on the petitioner". As my contention is that I was not served with any notice under S.28 of the Act, I applied to the Income-tax Officer, Kozhikode to furnish me a copy of the notice alleged to have been served on the petitioner". and in a further affidavit dated 15-9-1957: "The most important averment in my affidavit is that no notice was served on the petitioner of the proposed levy of penalty under S.28, and no opportunity at all given of being heard, as is imperatively required under S.28 (3). I applied to the Income-tax Officer Kozhikode, to grant me a certified copy of the notice alleged to have been served on the petitioner under S.28 (3), as I was directed to produce it in the High Court of Madras at the admission stage of this writ petition. A Written communication was sent to me dated 13-9-1956, which is signed by the deponent to the counter-affidavit himself that "he is unable to give me a copy of the penalty notice as a copy is not available on file". (Ext, C) The reply of the Income-tax Officer is Ext. G dated 13-9-1956: "With reference to your above letter I am to inform you that I am unable to give a copy of the penalty notice as a copy is not available on file". 12. That the petitioner did receive notice under S.28 (3) will be clear from Ext.1 dated 18-1-1952 and Ext. II dated 6-2-1952, letters of the petitioner to the First Additional Income-tax Officer, Kozhikode. Ext. I reads as follow: "Your notice under S.28 (3) for imposing penalty. I was shocked to get a notice under the above section, which was redirected to me by my brother two days back. I am here for the last one fortnight under treatment by undergoing injections to my phylarial complaint in the right leg. I expect a delay of one week more to return; and hence I beg your pardon not to impose any penalty on me till I forward a written explanation for my default committed immediately after my return. I am grieved to get the assessment order, and. I will see in person to assess property by going through the same books of a/cs, which was produced other day. Excuse trouble. With my great respects, I am quite unwell here to walk with my leg" and the opening portion of Ext. I am grieved to get the assessment order, and. I will see in person to assess property by going through the same books of a/cs, which was produced other day. Excuse trouble. With my great respects, I am quite unwell here to walk with my leg" and the opening portion of Ext. II is: "Ref: Your notice under S.28 (3), and my letter of 18th from Madras. With further reference to my above letter, I submit with great sorrow the following details of facts for your valuable attention on my behalf for the above notice under S.28 (3), so as to relieve me from the assessment and oblige". 13. It follows that both the contentions are untenable and that this petition must fail. It is hereby dismissed with costs, advocate's fee Rs. 150/-. 14. In the view I have taken it is unnecessary to consider the submission of the advocate for the Department that the two contentions I have dealt with above have not been raised in Ext. E the memorandum of appeal filed before the Appellate Asst. Commissioner, and that the petitioner is not as a result entitled to raise them in this court.