JUDGMENT M.P. Chandrakantaraj Urs., J.—This matter coming up for orders on I.A. No. I for vacating stay, the main writ petition is taken up for disposal and disposed of by the following order after hearing counsel for the petitioner as well as for the Revenue. 2. The petitioner is aggrieved by the show-cause notice issued as at annexure D purporting to be one issued under section 276C(2) of the Income Tax Act, 1961 (hereinafter referred to as "the Act"). The notice states that a sum of Rs. 34,754 is outstanding in respect of the assessment years 1984-85 and 1985-86 and it has not been paid despite levy of penalty under section 221(1) of the Act. In that connection, the respondent Income Tax Officer has proposed to launch prosecution under section 276C(2) of the Act for non-payment of the tax arrears if it is not paid within 10 days from the date of receipt of the letter. If further states that necessary challan for payment with interest for reason of delayed payment may be obtained from his office. In the alternative, he is required to send a demand draft in favour of the Reserve Bank of India. Therefore, the petitioner is aggrieved by the demand notice and thereat of prosecution and has approached this court seeking a writ of mandamus restraining the respondent-Income-tax Officer from proceeding to prosecute him on the ground that he is not a defaulter, as he has objected to the assessment for the year 1985-86 under sub-section (2)(a) of section 143 of the Act and the second proviso to the said sub-section. By a fiction, makes him not to be a defaulter as long as his application is pending. 3. The respondent has filed the statement of objections in support of the prayer for vacating the stay. It is stated therein that the officer has ignored the application under section 143(2) of the Act because it is filed beyond time. I do not think that meets the requirement of law. The application is not filed only to be ignored. It has to be either acted upon by granting the prayer or dismissed rejecting the prayer in the application. I do not think that meets the requirement of law. The application is not filed only to be ignored. It has to be either acted upon by granting the prayer or dismissed rejecting the prayer in the application. Even if it is to be rejected in limine on the ground that it is delayed or barred by limitation, then and opportunity must be given to the applicant to demonstrate that it is within time and, if there is delay, he has the right to have the delay condoned by the authority and to take steps in that behalf. As long as It is admitted that the application is not disposed of, then the second proviso to section 143(2) of the Act which reads as follows : "Provided further that in a case where the assessment made under sub-section (1) is objected to be an assessee by an application under clause (a), the assessee shall not be deemed to be in default in respect of the whole or any part of the amount of the tax demanded in persuance of the assessment under that sub-section, which is disputed by the assessee, in so far as such amount does not relate to any adjustment referred to in sub-clause (i) of clause (b) of sub-section (1), and further no interest shall be chargeable under sub-section (2) of section 220 in respect of such disputed amount". 4. The language employed in the above second proviso makes it abundantly clear that as long as the application is not disposed of, he will not be a defaulter and, if he is not a defaulter, payment cannot be enforced. Therefore, to that extent, the petitioner must succeed. 5. The impugned demand notice as at annexure D is quashed in so far as it relates to demand in respect of the assessment year 1985-86 with liberty reserved to the Income Tax Officer to proceed to proceed in accordance with law in the light of the observations made in the course of this order that the application pending must be disposed of on merits or otherwise before recovery proceedings are initiated by any one of the modes known to law. The petition, therefore, stands allowed to the extent indicated above. For the assessment year 1984-85, demand must be sustained as there is no objection filed under section 143(2) of the Act. 6. The petition, therefore, stands allowed to the extent indicated above. For the assessment year 1984-85, demand must be sustained as there is no objection filed under section 143(2) of the Act. 6. Rule will accordingly issue and be made absolute.