Lahiri, J. - By this application under Article 226 of the Constitution of India the petitioner questions the jurisdiction of the Controller to impose penalty u/s. 73(5) of the Estate Duty Act, for short, "the Act". The petitioner calls in question the jurisdiction of "the Controller” to impose penalty without consi­deration of his applications to treat him "as not being in default". It involves consideration as to the ambit of discretionary power of the Controller u/s. 73(4) of "the Act” to treat an accountable person "as not being in default''. The case also involves interpre­tation of Sections 62,70,73(4) and 73 (5) of "the Act". In the process we are to consider the contour of power of High Court under Article 226 of the Constitution of India to interfere with the discretionary power of the Controller u/s. 73(4) of "the Act" as well as his quasi-judicial power to impose penalty u/s. 73(5) of "the Act" read with Section 46(1) of the Income Tax Act, 1922. 2. A short resume of the intrinsic facts necessary for dis­posal of the case are set out herein below : - One Ambar Ali died on 10.4.65 leaving behind his widow, sons and daughters including many minor children. The petitio­ner, son of Ambar Ali and one of the accountable persons filed returns under the provisions of "the Act". The provisional assess­ment was made by the Controller. On 4.6.71, the Controller finally assessed the value of the properties left by the deceased u/s. 58(3) of "the Act” and demanded Rs. 25,133/- as estate duty. In pursuance thereto, a notice of demand u/s. 73 of "the Act" was served on the petitioner demanding the duty on or before 15.7.71. The petitioner preferred an appeal before the Appellate Controller u/s. 62(1) (a) (ii) of "the Act". The petitioner also prayed before the Controller for time to pay up the duty, which was allowed. Thereafter, the Controller informed the petitioner that if he so desired the Controller might allow opportunity to him to make payment of the duty in installments. The Controller extended the time for payment of the duty to 25.10.71, vide Annex-ure-3. The petitioner also prayed before the Controller for time to pay up the duty, which was allowed. Thereafter, the Controller informed the petitioner that if he so desired the Controller might allow opportunity to him to make payment of the duty in installments. The Controller extended the time for payment of the duty to 25.10.71, vide Annex-ure-3. On 10.11.71, the petitioner filed an application stating that he had preferred an appeal wherein he was likely to get relief and further expressed that financial difficulties stood in the way of making the payment all at once, and, prayed for treating him "as not being in default" until final disposal of his appeal pen­ding before “the Appellate Controller". Thus, he invoked the power of the Controller u/s. 73(4) of "the Act'' to treat him "as not being in default" and, alternatively prayed for opportunity to pay up the amount by suitable installments claiming that the first installment should not fall due before June, 1972. It may be mentioned here that by the demand notice the accountable per­sons were asked to pay the duty on 15.7.71, but the date of pay­ment was extended to 25.10.71, vide Annexure-3. It is also nece­ssary to extract the precise words used by "the Controller'' inviting the petitioner to avail of the opportunity of making the payment in installments. We extract it from Annexure-3 "........If you like,/ may allow suitable opportunity for installments if you apply for that....................." (Emphasis added) It is thus clear that the Controller urged the petitioner to exercise the option of payment by installment u/s. 70(2) of "the Act". In reply thereto the petitioner prayed for treating him "as not being in default" and in the alternative exercised option asserting that the first installment should not fall before June, 1972. However, it appears from the order dated 27/30.11.71 (Annexure-5) that the Controller allowed the petitioner to pay the duty by monthly installments, subject to payment of interest as applicable under "the Act". Installments were directed to be paid in the manner set out herein below : - "1st installment Rs. 4188/- To be paid on or before 15.1.71 2nd „ Rs. 4188/- 15.1.72 3rd „ Rs. 4188/- 15.2.72 4th „ Rs. 4188/- 15.3.72 5th „ Rs. 4188/- 15.4.72 6th „ Rs. 4193/- 15.5.72'' It appears from the order marked Annexure - 5 that the controller exercised powers u/s. 70(1) of "the Act". 4188/- To be paid on or before 15.1.71 2nd „ Rs. 4188/- 15.1.72 3rd „ Rs. 4188/- 15.2.72 4th „ Rs. 4188/- 15.3.72 5th „ Rs. 4188/- 15.4.72 6th „ Rs. 4193/- 15.5.72'' It appears from the order marked Annexure - 5 that the controller exercised powers u/s. 70(1) of "the Act". At least the said provision was quoted. The Controller tuned down the prayer of the petitioner to pay the first installment in June, 1972. The petitioner defaulted payment of some installments and the Con­troller issued notice to show cause why the order allowing pay­ment by installments should not be withdrawn and why pena­lty should not be imposed upon the petitioner for such defau­lts. The petitioner again prayed that he might be treated "as not being in default" u/s. 73 (4) of "the Act" and set out the grounds why the order should be made in his favour. The petiti­oner prayed for extension of time. Ultimately when the pe­titioner failed to deposit 5 installments, a notice of demand was issued by the Controller. The petitioner again prayed for treat­ing him "as not being in default". Thereafter, the Controller passed the impugned order dated 18.4.72 whereby the prayers of the petitioner to pay the first installment in June, 1972 as well as his prayer to treat him "as not being in default'' were rejected, and, a penalty of Rs. 10,470/- was imposed upon him and other accountable persons u/s. 73 (5) of "the Act". On 8.6.72 the peti­tioner filed this writ application under Article 226 of the Con­stitution and obtained a Rule. The operation of the impugned order was stayed on condition of depositing Rs.6000/ - towards the estate duty demand. Mr. S.K. Senapati, learned counsel for the petitioner has stated that the amount of Rs. 6000/- has since been deposited. 3. In sum, the Controller assessed the estate duty at Rs. 25,133/-. A notice of demand was served calling upon the peti­tioner to pay the duty on 15.7.71. Against the order of assessment the petitioner filed an appeal u/s. 62(1)(a)(ii) of "the Act". It was the Controller who prompted the petitioner to apply for payment of the duty demand by installments and vouched that it would be granted. The Controller also extended the date of payment of the duty to 25.10.71. Against the order of assessment the petitioner filed an appeal u/s. 62(1)(a)(ii) of "the Act". It was the Controller who prompted the petitioner to apply for payment of the duty demand by installments and vouched that it would be granted. The Controller also extended the date of payment of the duty to 25.10.71. The petitioner exercised the opt­ion to pay the duty by installments and claimed that the first installment should be made payable by June, 1972. The Contro­ller partially accepted the option. He allowed the petitioner to pay the amount by installments, but rejected the option to pay the first installment in June, 1972. Curiously, the Controller orde­red the petitioner to pay the duty by six monthly installments. All along the petitioner was insisting to treat him "as not be­ing in default" of course alternatively exercised the right to make payment by installments, insisting at the same time, that the first installment should be made payable in June, 1972. The Controller rejected the prayer to pay the first installment in June, 1972 and also turned down the prayer of the petitioner for tre­ating him "as not being in default", and imposed the penalty for non-payment of the five installments by his impugned order, marked Annexure - 5. 4. Dr. B. P. Saraf, learned Standing Counsel of the Income Tax Department appearing on behalf of the Respondents has con­tended that without exhausting the alternative remedy of app­eal against the order imposing penalty, the petitioner is not en­titled to any relief under Article 226 of the Constitution. Lear­ned Standing Counsel also contends that the discretionary pow­ers of the Controller u/ss. 70(1)(2) and 73(4) of "the Act'' can­not be called in question in an application under Article 226 of the Constitution. 5. The foremost question is, whether an alternative remedy of appeal provided in the statute bars the High Court to enter­tain a writ petition under Article 226 of the Constitution ? If not, what is the contour of power of the High Court to inter­fere with the exercise of powers u/ss. 70(2) and 73(4) of the Estate Duty Act ? Ordinarily the High Court does not entertain a writ petition ender Article 226 of the Constitution of India where the peti­tioner has an alternative remedy, which without being unduly onerous provides an equally efficacious remedy; vide Than Singh Nathmal vs. Superintendent of taxes, ITR 1964 SC 1419. 70(2) and 73(4) of the Estate Duty Act ? Ordinarily the High Court does not entertain a writ petition ender Article 226 of the Constitution of India where the peti­tioner has an alternative remedy, which without being unduly onerous provides an equally efficacious remedy; vide Than Singh Nathmal vs. Superintendent of taxes, ITR 1964 SC 1419. The view has been reiterated by the Supreme Court in Champalal vs. C.I.T., AIR 1970 SC 645 . In Himatlal vs. State of M.P., AIR 1954 SC 403 , the State Sale Tax Act provided a remedy of appeal against the order of assessment but the assessee had to deposit the whole amount of tax before he could prefer an appeal. It was not re­garded as an adequate alternative remedy and characterised by the Supreme Court as onerous and burdensome. In M. A. Aboroi vs. Shantilal Chotelal & Company, AIR 1966 SC 197 , the remedy by way of appeal against the order of confiscation and the impo­sition of penalty under the Sea Customs Act was held by the Supreme Court to be not an effective remedy for no appeal could have been filed without first depositing the penalty. In Shivram Poddar vs. I.T.O., AIR 1964 SC 1095 , it has been laid down that in matters relating to assessment, levy and collection of income tax the High Court may exercise its extra-ordinary power only when the question of infringement of fundamental rights arises or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction, which they do not possess. In Sales tax Officer vs. Ratan, AIR 1966 SC 142 , the fact that an assessee must deposit the tax amount while filing an appeal was not held to be sufficient to by-pass the remedy provided by the Sales Tax Act. It has been observed that to warrant the entertainment of a petitioner under Article 226 there must be something more in the case which goes to the root of the jurisdiction of the officer that something which shows that it would be case of palpable injustice to force the assessee to adopt the remedy provided by "the Act". In TELCO vs. Asst. Commissioner, AIR 1967 SC 1401 , the Supreme Court remitted the case to the High Court who had refused to interfere when the petitioner challenged an order of assessment of the Sales Tax Officer. In TELCO vs. Asst. Commissioner, AIR 1967 SC 1401 , the Supreme Court remitted the case to the High Court who had refused to interfere when the petitioner challenged an order of assessment of the Sales Tax Officer. It has been observed that though ordinarily High Court leaves an aggrieved party to take recourse to the remedies available under the ordinary law, if they are equally available under the ordinary law, if they are equally efficacious, yet there are certain exceptions and one of such exceptions pointed out is where action is being taken arbitrarily and without the sanction of law. In Bhopal Sugar Industries Ltd, vs. D.P. Dube, AIR 1967 SC 549 , it has been ruled that the High Court has undoubted jurisdiction to decide in writ application whether the taxing authority has arrogated to itself powers which it does not possess or has committed serious errors of procedure which has affected the validity of the decision or where the taxing autho­rity threatens to recover tax on an interpretation of the statute, which is erroneous. India Carbon vs. Supdt, of Taxes, AIR 1972 SC 154 : O.N.G.C. vs. State of Bihar, AIR 1976 SC 2478 ; State U.P. vs. Indian Hume Pipe Company, AIR 1977 SC 1132 are some of the cases in which reliefs were granted to the assessees. In Hirday Narain vs. I.T.O., AIR 1911 SC 33, the Supreme Court has held that if the writ petition is not dismissed in Minnie but entertained despite the availability of an alternative remedy and the parties were heard OB merit it would be unjustifiable for the High Court to dismiss the same on the ground of availability of an alternative remedy. In Madanlal Lohia vs. Assistant Controller, AIR 1977 SC 1871 , an order of penalty imposed by the Controller of Estate Duty against the garnishee was set aside by the Supreme Court. The High Court had dismissed the writ petition. Their Lordships allowed the appeal holding that the Controller had no jurisdi­ction to impose the penalty. The decision is an authority for the proposition that if the Controller acts without jurisdiction or fails to exercise jurisdiction vested in him by law and prejudice is caused to a party a writ petition is entertain able under Article 225 of the Constitution. Their Lordships allowed the appeal holding that the Controller had no jurisdi­ction to impose the penalty. The decision is an authority for the proposition that if the Controller acts without jurisdiction or fails to exercise jurisdiction vested in him by law and prejudice is caused to a party a writ petition is entertain able under Article 225 of the Constitution. In Assistant Controller of Estate Duty vs. Prayag Das, AIR 1931 SC 1263, the respond­ents had challenged the discretionary power of the Government u/s. 52 of the Estate Duty Act to accept the offer of property in discharge of liability. The High Court had held that the discretionary power was not exercised bonafide and set aside the impugned order. On appeal, their Lordships upheld the order of the High Court. This case is an authority for the proposition that abuse of the discretionary power conferred by “the Act'' is challengeable under Article 226 of the Constitution. In Hardeodas Jagannath vs. I. T. O. Shillong, AIR 1960 Assam 162 a Division Bench of this Court has ruled that the existence of an alternative remedy is not 'per se' a bar to the issue of a writ of certiorari and relied on Nagendra Nath Bora vs. Commissio­ner Hills Division, Assam, AIR 1958 SC 393. It has been further field that the discretionary power under section 45 of the Income Tax Act, 1922 conferred on the Income Tax Officer to threat the assessee "as not being in default" is a public duty and it would be a non-exercise of the discretion if the officer has not consi­dered the application at all or, in considering the application has taken into consideration matters which were extraneous to the object of the Act or had failed to apply his mind to the re­levant consideration. In such cases, it has been ruled, the High Court could issue a mandamus directing the officer to consider the application or to exercise his discretion according to law. 6. The High Courts have put self-imposed limitation not to entertain Writ petition under Article 226 of the Constitution where the petitioner has an alternative remedy available under the Statute. The High Court refuses to entertain a Writ petition when the petitioner can avail an alternative prayer, which is not unduly onerous. 6. The High Courts have put self-imposed limitation not to entertain Writ petition under Article 226 of the Constitution where the petitioner has an alternative remedy available under the Statute. The High Court refuses to entertain a Writ petition when the petitioner can avail an alternative prayer, which is not unduly onerous. The remedy under the Statute may not be as efficacious as the Writ petition, but there med must be handy and accessible. If the alternative remedy is oppressive or crushing or hard to endure it cannot be termed as an alter­native efficacious remedy. It is, therefore, necessary to consider whether the alternative remedy provided under "the Act” is efficacious remedy or not. An appeal against the order impos­ing penalty under section 73(5) of "the Act" is entertain able by the appellate Controller provided the appellant deposited the entire Estate Duty. In the instant case the penalty amount is Rs. 20,000/- and odd and the petitioner could prefer an appeal provided be had deposited Rs. 25,000/- and add, that is, the duty assessed. The petitioner was thus to deposit 2 times of the penalty amount to institute the appeal. This is not a case where the petitioner was to deposit only the penalty amount, but he was required to deposit 21 times the penalty amount to ena­ble him to get relief in the appeal. We are conscious that by the Estate Duty (Amendment) Act, 1985, Section 5C has been introduced and levy of an Estate Duty in respect of properties passing on the death after 16. 3.85 has been "discontinued". We are not sure what future holds in respect of "the Act' levy of duty has merely been discontinued from 16. 3. 85. There is just a break off or suspension of levy and the discontinua­tion may not be for a long period. But by deletion of Section 5C, the provisions of "the Act'' may come into play once again. As such, we say that proviso to Section 62 (1) (a) (iv) of "the Act'', which provides that a person aggrieved by an order imposing penalty under section 63(5)of "the Act" is to deposit the entire Estate Duty, is incongruous. We feel that the provision requires a second look by the legislature. As such, we say that proviso to Section 62 (1) (a) (iv) of "the Act'', which provides that a person aggrieved by an order imposing penalty under section 63(5)of "the Act" is to deposit the entire Estate Duty, is incongruous. We feel that the provision requires a second look by the legislature. Section 246 of the Income Tax Act, 1961 corresponding to the proviso to Section 62 (1) (a) (iv) of ''the Act" does not contain any such rigour requiring the appellant to deposit any amount. This is one facet. The other side of the picture is that the other form of appeal including appeal against an order of penalty imposed by the Controller u/ss. 60, 72 and 84 of "the Act'' do not require the appellant to deposit any amo­unt. It will be seen on perusal of Section 63 that the orders of penalty imposed by the Controller against persons who with­out reasonable cause fails to deliver account or fails to com­ply with any requisition issued by the Controller or without reasonable cause fails to submit or deliver any account or even conceals the particulars of the property of the deceased and deli­berately furnishes inaccurate particulars thereof, are appellable but the appellants are not to deposit any duty or portion thereof nor are they required to deposit any security. If such persons who conceals the particulars of the property of the deceased and deliberately furnishes inaccurate particulars have the right of appeal without payment of any duty or security how comes that a person who fails to pay the duty due to financial difficulties and penalised u/s. 73V5) of "the Act" should be asked to prefer an appeal subject to the payment of the entire Estate Duty determined by the Controller. The scheme of "the Act'' clearly depicts that there may be persons accountable who may not muster fund to pay the duty even in installments and "the Act” provides for granting them relief. If the reliefs are wrongly or capriciously denied to an accountable person and a penalty is imposed it would bi well nigh impossible for such a person to prefer an appeal. A person who cannot genuinely pay the duty on time due to his inability is given the right of appeal but with the rider that he should pay the entire Estate Duty. A person who cannot genuinely pay the duty on time due to his inability is given the right of appeal but with the rider that he should pay the entire Estate Duty. Turning to the instant case we rind that the petiti­oner could not bear the burden of paying the duty, asked for treating him "as not being in default” and alternatively exer­cised option to pay the duty by yearly installments. The Con­troller having had realised the difficulties of the petitioner impressed upon him to ask for installments, but the petitioner claims in this writ petition that the penalty has been imposed with­out permitting the petitioner to avail his statutory right to pay the duty by yearly installment, as provided in Sec. 70(2) of "the Act'' and further complains that his applications for treating him " as not being in default were rejected without any rhyme or reason. In our opinion, to call upon such a person to deposit the entire estate duty and then to prefer an appeal is a very onerous alternative remedy. The remedy provided is not an alternative efficacious remedy. Be that as it may, the writ petition has been entertained despite availability of a statutory remedy provided under "the Act". The parties have been heard on merits and we consider that it would be unjus­tifiable for us to dismiss the same on the ground of avai­lability of an alternative remedy. Further, the order refusing to treat the petitioner "as not being in default” is not an appellable order. Similarly, the order of the Controller in not allowing the petitioner to exercise his statutory right u/s. 70(2) of "the Act" is not appellable. If any of the conten­tions is allowed the impugned penalty must fall through. This is also another relevant consideration to hold that we must decide the questions raised. We also find that the petitioner has claimed that the undisputed facts would show that the officer assumed jurisdiction to impose penalty u/s. 73(5) of "the Act" which he did not possess. The petitioner has also claimed that the Controller had arrogated himself the power which he did not possess and committed serious errors of law and proce­dure which affected the validity of the decision. The petitioner contends that the Controller threatened the petitioner to reco­ver the penalty on erroneous interpretation of Sections 70(2) and 73(4) of "the Act". The petitioner has also claimed that the Controller had arrogated himself the power which he did not possess and committed serious errors of law and proce­dure which affected the validity of the decision. The petitioner contends that the Controller threatened the petitioner to reco­ver the penalty on erroneous interpretation of Sections 70(2) and 73(4) of "the Act". We are of the opinion that when the cha­llenges of the petitioner go to the root of the jurisdiction of the Controller the Writ petition cannot be dismissed without disposing the contention of the petitioner on merits. The questions raised require due consideration and disposal according to law. The conclusion reached by us is based on the decisions just allu­ded. 7. The first contention of the petitioner is that he had ex­ercised his statutory right u/s. 70 (2) of "the Act” to pay up the duty by yearly installments. It has been contended that the Controller acted illegally and without jurisdiction in changing the mode of payment into monthly installments, which he had no jurisdiction to do. Further the petitioner contends that the exercised his option to pay the first installment in June, 1972, that is. by yearly installment and the prayer was illegally rejected. He could not be a defaulter until the expiry of a pe­riod of one year commencing from 25. 10.71, the extended date of payment of the duty. At least he could not have been a defaulter until 15. 7. 72, the date of expiry of one year from the date when be was originally called upon to pay the duty by 15. 7. 71. It may be recalled that the Controller had asked the petitioner to apply for payment by installments. The petitio­ner exercised option to pay the duly in installments but claimed that the first installment should not be made payable before June, 1972. In short, he exercised his option u/s. 70 (2) of "the Act" and opted to pay the amount by yearly installment. In our opinion, the provisions of section 70 (2) confers a statutory right on the persons accountable, whether he has preferred any app­eal or not, to pay the assessed duty in installment. Now, the crucial question is whether the Controller could change or alter the mode of payment. We extract the provisions of Section 70 of "the Act" : - "70. Controller may allow postponement of payment on terms. Now, the crucial question is whether the Controller could change or alter the mode of payment. We extract the provisions of Section 70 of "the Act" : - "70. Controller may allow postponement of payment on terms. - (1) Where the Controller is satisfied that the estate duty leviable in respect of any property cannot, without exclusive sacrifice, be raised at once, he may allow payment to be postponed for such period, to such extent, and on payment of such interest not exceeding four per­cent or any higher interest yielded by the property, and on such other terms as he may think fit. (2) Notwithstanding anything contained in sub-section (1), estate duty in respect of immovable property may at the option of the person accountable be paid in four eq­ual yearly installments or eight equal half-yearly installments with interest at the rate of four per cent, per an­num or any higher interest yielded by the property from the date on which the first installment is payable and the interest on the unpaid portion of the duty shall be added to each installment and paid accordingly; but the duty for time being unpaid with such interest to the date of payment may be paid at any time and in the case where the property is sold shall be paid on completion of the sale and if not so paid shall be recovered in the manner specified in Section 73.'' It would be seen that Section 70 (I) confers a discretionary power on the Controller to postponement the payment of the duty. The discretion can be brought into play on the fulfillment of the requirements contained in the sub-section. The specific condition is that the Controller should be satisfied that the duty leviable in respect of any property cannot, without excessive sacrifice, be raised. There is no such finding reached by the Controller. As such, the question of exercising power u/s. 70(1) of "the Act'' did not arise. The power is not dependent on the exercise of any option by an accountable person. The Controller could have suo moto exercised it. He did not do so and asked the petitio­ner to exercise his option to pay the duty in installments. Fur­ther, there was no order of postponement of the payment of the duty for any period. The power is not dependent on the exercise of any option by an accountable person. The Controller could have suo moto exercised it. He did not do so and asked the petitio­ner to exercise his option to pay the duty in installments. Fur­ther, there was no order of postponement of the payment of the duty for any period. The Controller could allow postponement of the payment for a certain period to certain extent of the es­tate duty and could have put some terms and conditions like furnishing security etc. In our opinion, the Controller did not exercise his discretionary power u/s. 70(1) of "the Act". What we find is that the petitioner was called upon to exercise his option to pay the duty in installment. He exercised option and desired that the first installment should not fall due before June, 1972. It was exercise of the statutory right of the petitioner to pay the duty by yearly installment. It appears clear from the scheme of Section 70 of "the Act" that payment of the duty in installment is a statutory right of an accountable person. He may opt to pay the amount by yearly installment or half-yearly installment. The mode of payment are two-folds : payable (1) either in 4 equal yearly installments, or (2) in 8 half-yearly installments with interest. The choice or option is on the accountable person. The modes have been statutorily fixed. It cannot be altered or changed either by the accountable person or by any other au­thority. In the instant case, the Controller altered the mode of payment to monthly installments, which is against the express provision of Sec. 70(2) of the "the Act" and as such, the order is without jurisdiction. Further, the Controller had no jurisdic­tion vested in him bylaw to interfere with the exercise of option by an accountable person to pay the estate duty in yearly installments. The petitioner claimed that the first installment should not fall due before June, 1972. It was turned down by the Controller. There was no authority of law, which empowered the Controller to reject exercise of option by an accountable person to pay by yearly installments. The petitioner claimed that the first installment should not fall due before June, 1972. It was turned down by the Controller. There was no authority of law, which empowered the Controller to reject exercise of option by an accountable person to pay by yearly installments. As such, the order of the Controller directing the petitioner to pay by monthly installment as well as the order of the Controller rejecting the option of the petitioner to pay the duty by yearly installment were ille­gal and without jurisdiction. The Controller could not alter the mode opted by the petitioner or change the mode of monthly installment as he did. Situated thus, we reach the conclusion that when the petitioner had opted for payment of the duty by installment, the first yearly installment could not have been due on any date prior to 25.10.72, the extended date of payment, or at any rate, prior to 15.7.72, one year from the date on which the petitioner was called upon to pay the duty by 15.7.71. As such, the petitioner could not have been a defaulter in payment of the installment at least prior to 15.7.72, but the penal pro­ceeding was taken up u/s.73,5) of "the Act'' long before the ex­piry of the last date for payment of the first yearly installment. As such, the proceedings as well as imposition of penalty before the petitioner was a defaulter must be held to be invalid and without jurisdiction. 8. If the Controller has as well exercised jurisdiction u/s, 70(1) of 'the Act" he did so only upon reaching the conclusion that without excessive sacrifice to the property the duty amount could not be raised. It was strong enough a ground to allow the petitioner's claim to treat him "as not being in default" u/s. 73 4) of "the Act". We are of the opinion that notwithstanding exercise of discretion u/s. 70(1) of "the Act" an accountable person has right to pay the amount by installment and in the instant case the petitioner exercised his option-Any accountable person may spread over the payment up to 4 years 70(2) of "the Act" either by 4 equal annual installments or by 8 equal half-yearly installments. The right having been exercised by the petitioner he could not have been a defaulter until the expiry of a year from the date of the demand and/or the extended date of demand. The right having been exercised by the petitioner he could not have been a defaulter until the expiry of a year from the date of the demand and/or the extended date of demand. The penalty imposed by the Controller was for alleged default in payment 6 first 5 monthly installments amounting to Rs. 20,940/-, whiff were not paid by or within 15.4.72. The Controller could not have directed the petitioner to pay by monthly installments. The petitioner having had opted to pay by yearly installment no amount could be due on 15.4.72 and/ or on any date prior to 15.7.72 and/or 25.10.72. The Contro­ller has acted illegally and without jurisdiction in imposing the penalty overlooking the right of the petitioner to pay the duty by yearly installment, as provided in Section 70(2) of "the Act" and, as such, the impugned order is without any authority of law. The penalty imposed for non-payment of the first 5 monthly installments amounting to Rs. 20,940/- is illegal and without jurisdiction as the petitioner could not be a defaulter prior to 15.9.72 and 25.10.72. For the foregoing reasons we hold that the impugned order dated 18.4.72 impos­ing the penalty and the follow up notices including the notice dated 24.4.72 demanding the payment of penalty imposed are liable to be set aside, which we hereby do. The impugned order has occasioned a grave miscarriage of injustice and the petitioner has been seriously prejudiced therefore. 9. The next contention of the petitioner is that the Controller rejected the prayer of the petitioner to treat him "as not being in default” without considering any of his applications. By various applications the petitioner claimed that he bad preferred an appeal against the duty assessed, expressed his financial difficulties to pay the duty and took up various other points praying for treating him "as not being in default" until disposal of the appeal. There is no order, disposing any of the applications on merit. In the impugned order dated 1&.4.79, Annexure-9, the Collector observed that those prayers were 'repeatedly rejected'. We, however, do not find any such order. There is no order recording any reason for rejecting so many applications of the petitioner. The petitioner had preferr­ed an appeal u/s.62 of "the Act”, made applications setting forth the grounds why he should be treated "as not being in default'' until final disposal of the appeal. We, however, do not find any such order. There is no order recording any reason for rejecting so many applications of the petitioner. The petitioner had preferr­ed an appeal u/s.62 of "the Act”, made applications setting forth the grounds why he should be treated "as not being in default'' until final disposal of the appeal. We find that in one of the orders the Controller stated that an appeal by itself did not prohibit the Controller to proceed to recover the duty 73 of "the Act". In the final order he said that the prayers had been repeatedly rejected. However, we do not find any such order rejecting the application on merit, In Hardeodca Jagannath (supra) a Division Bench of this Court while interp­reting the provisions of Sec. 45 of the Income Tax Act, 1922 has held that the power not to treat the assessee as a defaul­ter is a discretionary power conferred on the Income-tax Officer. The conferment of the power casts a duty upon him to consi­der such a prayer, if made by the assessee, on its own merit and to exercise its jurisdiction judiciously. In our opinion, it will amount to non-exercise of the discretion if the Controller does not consider the application at all or in consideration of the application does not consider the relevant matters set out by the accountable person. The view finds support in Hardeodas (Supra). In Yusuf Jan Sahib vs. Additional Income-tax Officer, (1961)42 ITR 637, while interpreting Sec. 45 of the Income-Tax Act, 1922, the High Court held that failure to exercise in a proper manner the discretion vested in the I.T.O. u/s. 45 of the Income-tax Act not to treat the assessee "as being in default" can be successfully challenged under Article 226 of the Constitution. The discretionary power, it has been held, is coupled with duty to exercise it and if the officer does not exercise it or exercises it in such a manner that it is no exercise of discretion at all he can be compelled under Article 226 to discharge his duty. Section 45 of the Income Tax Act, 1922 corresponds to Section 73(4) of "the Act". In the applicat­ion for treating him "as not being in default'' the petitioner stated that he had preferred an appeal, that he had financial difficulties and had a fair chance of success in the appeal. Section 45 of the Income Tax Act, 1922 corresponds to Section 73(4) of "the Act". In the applicat­ion for treating him "as not being in default'' the petitioner stated that he had preferred an appeal, that he had financial difficulties and had a fair chance of success in the appeal. The application was rejected by the officer holding that the petitioner had been allowed to pay the amount in two installments. It was held by the High Court that the officer did not exercise any discretion whatever in rejecting the application, In Aluminium Corporation of India Ltd. vs. C. Balakrishnan, (1959) 37 ITR 267 , the Calcutta High Court construed Section 31(3) of the Wealth Tax Ace, 1957 in a similar manner. The provision of the Wealth Tax Act is similar to Section 73(4) of "the Act”. In Vetcha Sreeramamurthy vs. Income Tax Officer, (1956) 30 ITR 252, the Andhra Pradesh High Court through Subba Rao, C.J., as he then was, has held that the discretionary power u/s. 45 of the Income-Tax Act, 1922 coupled with the duty to exercise it and if he does not exer­cise it or exercise it in a perfunctory manner, he can be compelled to perform his duty under Article 226 of the Cons­titution of India. In M.L.M. Mahalingam Chettiar vs. Third Income-Tax Officer, Madras, (1961)66 ITR 287, the Madras High Court has held that the discretion vested in the Income Tax Officer u/s.220 (6) of the Income Tax Act, 1961 to treat the assessee "as not being in default" is not merely naked and arbitrary power but a power coupled with responsibility and the concerned officer should take all the circumstances into account and all the considerations that could be urged or are urged by the assessee as to why he should not be treated "as not being in default" and then make such order as is appropriate to the facts of the case. Section 220(6) of the Income Tax Act, 1961 corresponds with the provisions of Section 73(4) of "the Act". In Om Prakash Agarwal vs. Inco­me Tax Officer 'A' Ward, Meerut (1967)66 ITR 775, the Allahabad High Court bad held inter alia that before the Income-Tax Officer could impose a penalty u/s. 221 of the Income-Tax Act, 1961 he must determine whether the assessee is in default or is deemed to be in default in making payment of the tax. In Om Prakash Agarwal vs. Inco­me Tax Officer 'A' Ward, Meerut (1967)66 ITR 775, the Allahabad High Court bad held inter alia that before the Income-Tax Officer could impose a penalty u/s. 221 of the Income-Tax Act, 1961 he must determine whether the assessee is in default or is deemed to be in default in making payment of the tax. While determining the question the High Court has held that the officer must consider not only whether the amount speci­fied in the notice of demand has been paid within the time limit but also whether the assessee has preferred an appeal and whether the circumstances of the case are such that the asse­ssee should be treated as not being in default particularly when the assessee has filed an application u/s. 22(6) for being treated as not being in default. Without determination of the question in accordance with the procedure laid down in the statute no penalty could be levied. In that case, the Income-tax officer did not dispose of the application of the petitioner who had applied for treating him "as not being in default”, before the order of penalty was proclaimed. The I.T.O. was directed to consider the application and thereafter to dispose of the penalty proceedings. 10. We are of the view that the discretionary power confe­rred on the Controller, a public officer, is for discharging public duty. He must perform his duties according to law and reason. Normally, the power should be exercised in favour of the person, who has preferred an appeal unless there is some sound or reasonable ground for denying the benefit to the accountable person. The object of section 73(4) of "the Act", is that when an appeal has been filed it would be good ground for treating the accountable person as not being in default to the extent of the whole or part of the demand applied against. The Folder is to satisfy himself as to whether an appeal has been filed or not. If he does find that an appeal has been filed, normally he should treat the assesses "as not being in default'' unless he finds materials to deny the discretionary relief to the appellant. The Folder is to satisfy himself as to whether an appeal has been filed or not. If he does find that an appeal has been filed, normally he should treat the assesses "as not being in default'' unless he finds materials to deny the discretionary relief to the appellant. We are of the firm opinion that the power u/s. 73(4) of "the Act” conferred on the Controller is a public duty and the Controller is obliged to consider whether a person, who has preferred an appeal is entitled to be treated "as not being in default". The officer is bound to exercise his discretion according to law and not arbitrarily or capriciously without taking into account the relevant matters germane to the quest­ion. If he does not exercise his power or neglects to exercise the power it would amount to failure of duty by a public officer, who may be compelled to perform his duty. If the duty is exercised properly according to law and reason the order cannot be disturbed. In the instant is;, repeated prayers were made by the petitioners to treat him "as not Bergin default''. There is no wrangle that the petitioner had preferred an appeal. The petitions were not considered at all. At least no reason has been given by the Controller for not exercising the discretion in favour of the petitioner. There is no order giv­ing reasons why the claim of the petitioner could not be acce­pted. Situated thus and on the authority of the decisions just alluded, we are of the view that the impugned order of penalty cannot be sustained until the applications filed by the petitioner for treating him “as not being in default" are disposed accord­ing to law and reason. 11. For the foregoing reasons we hold that the impugned order of the Controller imposing penalty without considering the applications of the petitioner u/s. 73(4) of "the Act" to treat him --as not being in default" is liable to be set aside which we hereby do. We direct the Controller to consider the applications of the petitioner and dispose them in accordance with the law and reason. We bold that the impugned order of the Controller refusing to allow the petitioner to pay the yearly installment was illegal and violative of section 70(2) of "the Act". We set aside the said order. We direct the Controller to consider the applications of the petitioner and dispose them in accordance with the law and reason. We bold that the impugned order of the Controller refusing to allow the petitioner to pay the yearly installment was illegal and violative of section 70(2) of "the Act". We set aside the said order. We also hold that the impugned order of penalty is illegal and without jurisdiction inasmuch as the penalty proceeding was drawn up and disposed of before the expiry of the date of payment of the first yearly installment. We also hold that at all relevant time the petitioner was not a defaulter. In the result, the impugned orders are quashed. We remit back the case to the Controller to dispose of the applications of the petitioner u/s. 73(4) of "the Act'' in accordance with the law and reasons provided the appeal is still pending. However, if the appeal is pending and the applications are rejected, the Controller shall be at liberty to proceed against the petitioner in accordance with the law. If the appeal has been disposed, it would be open to the Controller to proceed against the petitioner u/s. 73(5) of "the Act''. 12. In the result, the petition is accepted, but we make no order as to costs.