P. R. GOKULAKRISHNAN, J. ( 1 ) RULE. Mr. R. P. . Bhatt waives service of rule on behalf of respondents Nos. 1 to 4. ( 2 ) BY consent of the parties this Special Civil Application is taken up for final heating and the arguments were heard. This Special Civil Application is to quash dad set aside the mere show cause notice issued under Rule 73 of the Second Schedule to the Income Tax Act whereby the petitioner is called upon to show cause as to why a warrant of arrest should not be issued. The said notice is at-Annexure A to the Special Civil Application. There are further prayers to the effect that to quash and set aside the demand notice dated 3/04/1989 demanding payment of Rs. 10 50 952 plus cost and interest and the same is at Annexure `b to the Special Application; that to quash and set aside the notice of demand to defaulter Bearing No; TRO-IV/121/a/88 dated 31-5-1988 issued by the Tax Recovery Officer under Rule 2 of the Second Schedule to the Act dated 31/05/1988 which is at Annexure E to the Special Civil Application and that to quash and set aside the Income Tax Assessment Older passed by respondent No. 3 dated 5/03/1986 for the dissolved firm of Jagatbhai Punjabhai for Assessment year 1980-81. ( 3 ) THE short facts of the case for the purpose of discussion are that the petitioner is one of the partners of the partnership firm called M/s. Jagatbhai Punjabhai. This firm Consists of three persons by name Mr. Vikrambhai Punjabhai Palkhiwala Mr. Jagatbhai Punjabhai Palkhiwala and Mr. Punjabhai Mohanlal Palkhiwala. The dispute relates to the Assessment year 1980-81. On 30/03/1983 the Income Tax Officer passed Assessment Order holding that the said firm has from unexplained investment interest income of Rs. 1 31 50 and an expenditure of Rs 3 715 The Income Tax Officer determined the taxable income of Rs. 8 55 391 Aggrieved by this order the petitioner heroin filed Income Tax Appeal No. 323-114-G/asstt. Year 1980-81 for the firm of M/s. Jagatbhai on 2/04/1983 The petitioner also moved an application under Sec. 146 of the Income Tax Act for reopening of the assessment made by the Income Tax Officer. This was acceded to and a fresh Assessment Order was passed in this case. Year 1980-81 for the firm of M/s. Jagatbhai on 2/04/1983 The petitioner also moved an application under Sec. 146 of the Income Tax Act for reopening of the assessment made by the Income Tax Officer. This was acceded to and a fresh Assessment Order was passed in this case. Since the petitioner did not represent in spite of the notice to the partner- ship firm an ex parte assessment order came to be passed on 5/03/1986 On 31/05/1988 the petitioner received a notice of demand under Rule 2 of the Second Schedule to the Act from the Tax Recovery Officer demanding Rs. 10 50 952 This demand notice is marked as Annexure `e to the Special Civil Application. A letter was also sent by the Income Tax Officer pointing out that the assessment order was served on the partner of firm of M/s. Jagatbhai Punjabhai and in view of the said service the demand is payable by the petitioner. The copy of the said letter is annexed as Annexure G to the Special Civil Application. It transpires from the correspondence that assessment order was made after hearing Jagatbhai Punjabhai on 5-3-1986. On receipt of the said letter and the assessment order the petitioner preferred an appeal before the Commissioner of Income Tax (Appeals) on 19-10-1988. It is the say of the petitioner that the notice served upon Jagatbhai Punjabhai is not a valid one since this partner and the petitioner are fighting with each other by filing more than 20 suits in the City Civil Court at Ahmedabad. It is also seen from the facts of the case that a rectification of the ex parte assessment order for the Assessment year 1980-81 under Sec. 154 of the Act filed by the Officer concerned. even against this order of rejection the petitioner has preferred an appeal before the Commissioner of Income Tax- (Appeals) and the same is at Annexure `o to this Special Civil Appli- cation. Thus it is clear from the abovesaid facts that the petitioner has held appeals both against the assessment order and also against the refusal to rectify as prayed for by the petitioner by virtue of Sec. 154 of the Income Tax Act. Thus it is clear from the abovesaid facts that the petitioner has held appeals both against the assessment order and also against the refusal to rectify as prayed for by the petitioner by virtue of Sec. 154 of the Income Tax Act. ( 4 ) IT is after all these proceedings that the impugned show cause notice dated 12/04/1986 which is at Annexure A was issued under Rule 73 of the Second Schedule of the Income Tax Act 1961 to show cause as to why a warrant of arrest should not be issued by respondent No. 1. In view of these facts the petitioner states that as the Income Tax Assessment Order dated 5/03/1986 is passed without giving an opportunity to the petitioner of being heard and the said order is ex facie contrary to the facts the said order is required to be quashed and set aside and all consequential notices issued for recovery of the tax such as notice of demand under Rule 2 dated 31/05/1988 (Annexure E to the petition) notice to recover Rs. 10 50 952 dated 3/04/1989 (Annexure B to the petition) and notice under Rule 73 of the Second Schedule of the Act dated 12 to show cause why warrant of arrest should not be issued as consequentially required to be quashed and set aside. ( 5 ) THE respondents have filed affidavit-in-reply refuting all these allegations and asserting that the Assessment Order was legally passed after proper service of notice on the partnership firm when the petitioner is bound and liable to pay the tax due that the writ proceeding under Art. 226 is not maintainable inasmuch as the petitioner has effective and efficacious remedy by way of appeal which remedy the petitioner has already resorted to and that there is no violation of any statutory provisions in issuing the notice under Rule 73 of the Second Schedule to the Income Tax Act 1961 much less any violation of Sec. 220 of the Act. Mr. Vakil after repeating the above said facts raised in the Special Civil Application contended that the Assessment Order has to be set aside. This argument of Mr. Vakil need not detain us very much since the petitioner himself has filed appeals against the Assessment Order and also against the order passed in the rectification application under Sec. 154 of the Income Tax Act. This argument of Mr. Vakil need not detain us very much since the petitioner himself has filed appeals against the Assessment Order and also against the order passed in the rectification application under Sec. 154 of the Income Tax Act. The narration of the facts started cannot be disputed since those facts are taken only from the averments made by the petitioner in his Special Civil Application which clearly reveals the fact of the petitioner filing appeals before the appellate authorities. When such an effective remedy under the provisions of the Income Tax Act has been taken a prayer for quashing the Assessment Order cannot be entertained on the facts and circumstances of this case by exercising the extraordinary jurisdiction under Art. 226 of the Constitution of India. ( 6 ) THE main thrust of argument of Mr. Vakil is in respect of the show cause notice issued under Rule 73 of the Second Schedule of the Income Tax Act 1961 Mr. Vakil states that the notice issued is defective since it has not spelt out as to under which clause and for what reasons and purpose such a notice was issued. Unless the show cause notice specifically mentions the grounds on which such a notice is issued Mr. Vakil submits that it is not possible for the petitioner to made representations and as such the said show cause notice cannot be sustained and the same has to be quashed. According to Mr. Vakil the condition precedent for issuing a notice is that such a notice should specify as to which of the mandate provided under Rule 73 (1) (a) or (b) has been violated. Mr. Vakil further contended that the show cause notice is not for roving and fishing enquiries but it must be specific as regards the reason for which such a notice is issued and such a vague-notice according to Mr. Vakil has to be quashed. In this connection Mr. Vakil cited the decision in the case of Calcutta Discount Company v. I. T. Officer reported in AIR 1961 SC 372 . This is a case which arises under Sec. 34 of the Old Act corresponding to Sec. 147 of the amended Act. Vakil has to be quashed. In this connection Mr. Vakil cited the decision in the case of Calcutta Discount Company v. I. T. Officer reported in AIR 1961 SC 372 . This is a case which arises under Sec. 34 of the Old Act corresponding to Sec. 147 of the amended Act. If the Income Tax Officer has reason to believe that income profits or gains chargeable to income tax have been under-assessed and that such under-assessment has occurred by reason of either: (I) Omission or failure on the part of an assessee to sake a return of his income under Sec. 22; or (ii) Omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for that year; he can re-assess such income. Thus the abovesaid two conditions are conditions precedent for resorting to Sec. 34 and there must also be satisfaction by the Officer concerned that there are reasons to believe that the abovesaid conditions are violated. Speaking for the majority view (Justice S. K. Das Justice Das Gupta and Justice N. Rajagopala Ayyangar) Justice Das Gupta observed in the abovesaid decision as follows: under Sec 34 both the conditions (i) the Income Tax Officer having reason to believe that there has been under assessment and (ii) his having reason to believe that such under assessment has resulted from non-disclosure of material facts must co-exist before the Income Tax Officer has jurisdiction to start proceedings after the expiry of 4 years In proceedings under Art 226 the high Court can Investigate the existence of one of these conditions viz. that the Income Tax Officer has reason to believe that under assessment has resulted from non-disclosure of material facts. Even in the dissenting judgment Mr. Justice J. C. Shah observed: if the conditions precedent do not exist the jurisdiction of the High Court to issue high prerogative wits under Art 226 to prohibit action under the notice may be exercised But if the existence of the conditions is asserted by the authority entrusted with the power and the materials on the record prima facie support the existence of such conditions an enquiry whether the authority could not have reasonably held the belief which he says he had reason to bold and he did hold is barred. Pressing this decision into service Mr. Pressing this decision into service Mr. Vakil the learned counsel Appearing for the petitioner submitted that the condition precedent for issuing the notice is spelling out the reasons for issuance of such notice as provided under Rule 73 (1) (a) and (b) and since those things are not spelt out in the notice under question the notice impugned has to be quashed. ( 7 ) MR. R. P. Bhatt learned Counsel appearing for the respondents submitted that the notice under Rule 73 is a procedural notice and there is no need to spell out the reasons to the said notice. As far a Sec. 34 corresponding to Sec. 147 of the present Act is concerned it is a substantive action to be taken by the Officer concerned and for taking such action the Officer concerned must get satisfied with regard to the facts mentioned in Sec. 34 corresponding to Sec. 147 as observed by the Supreme Court in the abovesaid decision. Mr. R. P. Bhatt also submits that the notice at Annexure A is clear enough to spell out the default committed by the petitioner herein for which the notice under Rule 73 has been issued. The show cause notice which is at Annexure A issued under Rule 73 clearly states that the petitioner has failed to pay the amount of arrears specified in certificate No. nil dated 5-5-1988 forwarded by the Income Tax Officer VIII-Division Ahmedabad and that it is proposed to execute the above certificate by arrest and imprisonment of the petitioner. The said notice further states that the petitioner must appear before the Tax Recovery Officer VI Ahmedabad on 19/04/1989 at 11-00 a. m. for the purpose of showing cause as to why the should not be committed to the civil prison in execution of the said certificate. The said notice further states that the petitioner must appear before the Tax Recovery Officer VI Ahmedabad on 19/04/1989 at 11-00 a. m. for the purpose of showing cause as to why the should not be committed to the civil prison in execution of the said certificate. ( 8 ) RULE 73 of the Second Schedule to the Income Tax Act reads as follows:73 (1) No order for the arrest and detention in civil prison of a defaulter shall be made unless the Tax Recovery Officer has issued and served a notice upon the defaulter calling upon him to appear before him on the date specified in the notice and to show cause why he should not be committed to the civil prison and unless the Tax Recovery Officer for reasons recorded in writing is satisfied; (a) that the defaulter with the object or effect of obstructing the execution of the certificate has after the drawing up of the Certificate by the Tax Recovery Officer) dishonestly transferred concealed or removed any part of his property or (b) that the defaulter has or has had since (the drawing up of a certificate by the Tax Recovery officer) the means to pay the arrears or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same (2) Notwithstanding anything contained in sub-rule (1) a warrant for the arrest of the defaulter may be issued by the Tax Recovery Officer if the Tax Recovery Officer is satisfied by affidavit otherwise that with the object or effect of delaying the execution of the certificate the defaulter is likely to abscond or leave the local limits of the jurisdiction of the Tax Recovery Officer (3) Where appearance is not made in obedience to a notice issued and served under sub-rule 11 the Tax Recovery Officer may issue a warrant for the arrest of the defaulter. (3a) A warrant of arrest issued by a Tax Recovery Officer under sub-rule (2) or sub-rule (3) may also be executed by any other Tax Recovery Officer within whose jurisdiction the defaulter may for the time being found (4) Every person arrested in pursuance of a servant of arrest under this rule shall be brought before the Tax Recovery Officer issuing the warrant as soon as practicable and in any event within twenty four hours of his arrest (exclusive of the time requited for the journey);provided that If the defaulter pays the amount entered in the warrant of arrest as due and the costs of the arrest to the Officer arresting him such officer shall at once release him. Rules 73 to 81 prescribe the procedure for the arrested person in a civil person of the default in payment of income tax. Rule 71 (1) clearly states that no order for the arrest and detention in civil prison of a defaulter shall be made unless the Tax Recovery Officer for reasons recorded in writing is satisfied. The issue of show cause notice under Rule 73 is clearly to the effect that it is only a procedural safeguard before any order of arrest or detention in civil prison is passed. The reading of Rule 73 (1) makes it clear that as a condition precedent for arrest and detention in civil prison of a defaulter the Tax Recovery Officer must find out that any of the conditions mentioned in Rule 73 (a) and (b) has been satisfied. At the time of issuing a notice it has been made clear that the said notice is issued under Rule 73 of the Second Schedule and the same has been issued since the assessee has failed to pay the amount of arrears specified in the certificate. The notice also is specific to the effect that for the said notice under Rule 73 the assessee has to show cause before the Recovery Officer. It is a procedural safeguard for the assessee concerned and this rule clearly satisfies the principles of natural justice before issuance of an order for arrest and detention. When the rule itself has been mentioned in the notice the assessee concerned is made known under what rule the notice is issued and the said rule clearly spells out the grounds on which the Recovery Officer has to get satisfied. When the rule itself has been mentioned in the notice the assessee concerned is made known under what rule the notice is issued and the said rule clearly spells out the grounds on which the Recovery Officer has to get satisfied. It is not as if this notice issued under Rule 75 straightaway authorises the Officer concerned to arrest and detain the assessee as if the reasons mentioned in Rule 73 (a) and (o) are there for the Officer to order the arrest and detention. The notice which is at Annexure A to the Special Civil Application clearly spells out that such a notice is issued since the assessee has failed to pay the amount of arrears specified in the certificate. Such a show cause notice as we have stated above is a procedure adopted by the Department and that is why Rules 73 (3) 73 (a) 73 and 74 make it clear that the Department is particular to have the defaulter present before the Officer to show cause. Rule 75 deals with the custody of the assessee pending hearing. These rules have nothing to do with the power of the Officer to arrest and detain the defaulter in civil prison but they are intended to see that the defaulter appears before the Officer concerned for giving explanation as to why an order of arrest and detention in civil prison should not be passed. Rule 76 reads as follows:76 (1) Upon the conclusion of the inquiry the Tax Recovery Officer may make an order for the detention of the defaulter in the civil prison and shall in that event cause him to be arrested if he is not already under arrestprovided that in order to give the defaulter an opportunity of satisfying the arrears the Tax Recovery Officer may before making the order of detention leave the defaulter in the custody of the Officer arresting him or of any other Officer for a specified period not exceeding 15 days or release him on his furnishing security to the satisfaction of the Tax Recovery Officer for his appearance at the expiration of the specified period if the arrears are not satisfied. (2) When the Tax Recovery Officer does not make an order of detention under sub-rule (1) be shall if the defaulter is under arrest direct his releasereading this Rule it is clear that the notice issued under Rule 73 is a procedural one and the decision is to be taken by the Recovery Officer only after the defaulter appears before the Officer concerned and after hearing the party and the Officer getting satisfied as to the advisability of arrest and detention of the defaulter in civil prison. ( 9 ) MR. Vakil next contended that appeal under Sec. 220 (6) is pending and as such the assessee should not be treated as a defaulter by issuing the notice under dispute. Section 220 (6) reads as follows: (6) Where an assessee has presented an Appeal under Sec. 246 the (Assessing) Officer may in his discretion. and subject to such conditions as he may think fit to impose in the circumstances of the case treat the assessee as not being tn default in respect of the amount in dispute in the appeal even though the time for payment has expired as long as such appeal remains undisposed of. In this connecion Mr. Vakil points out a Circular which is at Annexure V to the. Special Civil Application for the purpose of getting the stay of issuance of the notice. The Circular reads as under: stay in cases of harsh assessment. It seems that the Government has agreed and has sent instructions to the Commissioners that in cases of harsh assessments the Income Tax Officer should normally grant stay on application made under Sec. 270 (6 ). That is clear from the proceedings of Lok Sabha dated 11/12/1970 where in reply to unstarred question No. 4289 the Minister for Revenue and Expenditure assured: (a) and (b) Suitable instructions (to the effect that where the income determined assessment was substantially higher that the returned income say twice the latter amount or more the collection of the tax in dispute should be held in abeyance till the decision of the appeal provided there were no lapses on the part of the assessee) have been issued by the Central Board of Direct Taxes to all Commissioners of Income Tax in view of the recommendation made by the Informal Consultative Committee of the Ministry. In this connection Mr. In this connection Mr. Vakil also cited the decision in the case of Hindustan Rubber Works Ltd. v. I. T. C. reported in 1971 ITR (Vol. (1) 397. In that case the Calcutta High Court observed: under Sec. 2z0 (6) of the Income Tax Act 1961 the Income Tax Officer should keep a demand in abeyance so long as the appeal remains undisposed of. The Income Tax Officer has discretion for good reasons not to grant any stay at all he has also the power to impose such conditions as he considers necessary for example security might be required or diligence on the pars of the assessee in the prosecution of the appeal might be insisted. But arbitrarily to grant a stay up to a period and not so long as the appeal remains undisposed of it not Z proper exercise of discretion by the Income Tax Officer under Sec. 220 6) of the Income Tax Act 1961 The assessee preferred an appeal before the Appellate Assistant Commissioner against the order of the Income Tax Officer. In the meantime. the Income Tax Officer has forwarded a certificate to the Tax Recovery Officer and the Tax Recovery Officer had issued a notice to the assessee under Rule 2 of Schedule II of the Income Tax Act 1961 the assessee had also made a prayer to the Income Tax Officer for grant of a stay of realization of the tax until the disposal of the appeal before the Appellate Assistant Commissioner. The Income Tax Officer granted stay of the certificate upto a certain period. Since the appeal before the Appellate Assistant Commissioner still remained undisposed of the assessee applied again to the Income Tax Officer for extension of the stay granted and on that application the Income Tax Officer did not pass any order It was contended for the assessee that the Income Tax Officer bad failed to exercise his discretion by extending the order of stay already granted. Held that when there was a subsequent application for extension of time and when the petitioner had already been granted a stay without imposing any condition it was not open to the Income Tax Officer not to exercise his discretion any further unless there was anything in the conduct of the petitioner which disentitled him to further stay till the appeal was disposed of. Considering abovesaid Circular and decision cited by the learned Counsel we can usefully look into the facts of the case. This has a chequered career in respect of assessing the firm. An ex parte assessment demanding the assessment income of Rs. 8 55 390 was set aside. There was a fresh order of assessment dated 5-3-1986. On 19-1-1988 the Income Tax Officer gave a show cause notice to the petitioner. To this the petitioner replied on 19-3-1998. Subsequently the Income Tax Officer on 31-3-1988 issued a notice to the firm and it returned unserved. It is also factually ascertained that the petitioner met the Income Tax Officer is 1-6-1988 and subsequent to that the Tax Recovery Officer served the notice of demand on 23-8-1998. The Assessment Order in this case seems to have been served on 3-10-1988 and appeal thereof has been filed on 19-10-1988. Along with the appeal it is stated by the petitioner that the order for stay under Sec. 220 (6) has been prayed for. On this factual aspect the petitioner submits that when a request has been made under Sec. 220 (6) and the same is pending a notice under Rule 73 is not justified. To complete the facts it is seen that a stay petition filed by the petitioner was rejected. Taking into consideration all these aspects of the ease we do not find that there is anything in Sec. 220 (6) debarring the Officer concerned from refusing grant of stay. The mere filing of an appeal or an application for stay in such an appeal will not ipso facto grant stay of further proceedings in a tax recovery matter. The decision cited above ( 1971 ITR 397 ) does not take away the right of the Officer concerned in rejecting the stay application. On the other hand in that decision it only states that since the Officer has granted the stay originally under Sec. 220 (6) he cannot without sufficient cause refuse to continue the same. In those circumstances the Court held that such an order is bad. Hence we do not think that the said decision can have any application to the facts and circumstances of this ease more especially the stay asked for has been rejected at the threshold itself. In those circumstances the Court held that such an order is bad. Hence we do not think that the said decision can have any application to the facts and circumstances of this ease more especially the stay asked for has been rejected at the threshold itself. As we have already observed Rule 73 notice is only a procedural show cause notice and cannot be equated with the recovery proceedings under substantive Section of the Income Tax Act. Under Rule 73 the procedure is to find out and get explanation as to the advisability of executing and enforcing the tax recovery by detention in civil prison. There is absolutely no dispute that Sec. 156 demand has been served on the petitioner and the present notice under Rule 73 is not a jurisdictional notice as contemplated under Sec. 148 of the Income Tax Act. Considering all these aspects of the ease as submitted by Mr. R. P. Bhatt in his argument and also taking into account the affidavit-in-reply we do not find any point for granting the prayers made by the petitioner herein. For all these reasons this Special Civil Application is dismissed Rule discharged. .