# 2 S.C.R. SUPREME COURT REFORTS THE INCOME-TAX OFFICER CIRCLE II MADU!{A, AND ANOTHER v. M. R. VIDYASAGAR

- **Citation:** [1962] Supp. 2 S.C.R. 613
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal Nos. 545 and 546 of 1900
- **Bench:** B. P. Sinha, J.L. Kapur. M. H!Dayatullaji, J.C. ~Hah, J. H.. MunHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2-s-c-r-supreme-court-reforts-the-income-tax-officer-circle-ii-madu-a-and-2329
- **Pages:** 10

## Headnote

Income Tax-Payment of advance tax-Assessed income
exceeded the estimate-Levy of interest-Power to reduce or
waive- -When cc,uld be exercised-- Indian Income-tax Act, 1922
(11 of 1922), s. 18A (6) fifth proviso-Indian Income•tax
(Amendment)
Act, 1953 (22j of 1953), s. 13-Income-tax
Ruks r.48.
The Income-tax Officer, Madura, issue 1 notice under
s. 18A (I) of the Indian Income-Tax Act, 1922, for payment
of advance tax. R, the then manager of the Hindu Undivided
family availed of the option to submit a l'evised estimate for
the years 1946-47 and 1948-49. The assessment ofthese
two years were completed respectively in November, 19)0 and
February, 1951, as the total incom~ a:;je;sed far exceeded the
estimate submitted by R, th: Ino Hll!·ti< Officer ordered the
respondent, the legal representative of R, ti;l P"Y the interest
under s. IBA (6) of the •Act. On appeal,
the Income-tax
Appellate Tribunal reduced the income and. the Income-tax
Officer in giving effect to the said order reduced the interest
and c.<llect upon the respondent to make payment.
The
respondent asked the Income-tax Officer not to levy inter·
e,t under s. ISA 16), submitting that the levy was illegal and
unju'1ified, alternatively he requested that the interest be
waived by virtue of the powers vested on the Income-tax
Officer under proviso 5 to•· 18'\ (6) which was added by
s. 13 of Act 25 of l9j3, with retrospective effect from April
1952. The Income-taJ< Officer and the Inspection Assistant
Commi,,ioner declined
t~ accede to the request. The respondent then moved the High Court at Madras for a writ
under Art. 226 cancelling the levy of interest on the ground
among ochers that refusal by the Revenue authorities to cancel
the levy was arbitrary and not based on any judicial exercise
of the discretion vested by the Act.
The High Court upheld the plea, ordered the Income tax Officer to decide whether the respondent had made out a case for the exercise
of the discretion. The only question in the appeal before the
Supreme Court was whether benefit of the said 5th proviso
to s. I SA (6) may be granted in respect of asse•smcnts of income which were . completed by the Income-tax Officer before Ap.ril 1952.
lS62
n.n.-"""'
0 .Jur Cfrtj< II
Madut~
v.
JI. B. V~,aMl.far
SWJ.
614
SUPREME OOURT REPORTS [1962] SUPP.
Htld, that the jurisdiction under 5th proviso of s. IBA
(6) of the Income-tax Act may be exercised by the incometax Officer in all cases which wrre pending on April I, 1952
before him or any superior authority having under the Act
power to modify the assessment of income.
C!v:IL APPELLATE JURISDICTION : Civil Appeal
Nos. 545 and 546 of 1900.
Appeals from the judgment and order dated
Augmt 13, 1954, of the Madras High Court in
Writ Petitions Noe. 743 and 7-!S of J 95!.
K. N. Rajagopal Sastri and P. D. Menon, for
the appellants.
The respondent did not appear.
19.62. January 17.-The Judgment of the coun
was delivered by
SHAH, J.-'Ihcse are two appeals with certificates of fitness granted by the High Court of
Judicature at Ma.drae against certain orders passed
in Writ Petitions uu<ler Art. 226 of the Colllltitution.
One Ram1111wami Iyer-father of the respondent-Wiil' aeeCBl!ed to incomP-tax in the status of a
Hindu Undivided Family. Ramaswami Iyer died
in 1949 and the respondent M.R. Vidyasagar
became the manager of the family.
The family
W&8 a partner through its man~er in a firm styled
"The Madura Knitting Compauy", and the share in
the profits of the partnership which wae registered
under the Indian Income· tax Act W&B th\l principal
source of its aaseseable income.
Under s. ISA of
the Indian Inoome-tax Act, the Hindu undivided
family was liable to pay advance tax for each of
the &BBCBSment years HJ46-4 7, I 94 7-4S and l!J4S-49.
The Income-tax (Jffice1·, Madura, fseued notices
under s. UiA (1) of the Indian Income.tax Act for
payment of &dvanoe tax on the basis of the preceding year's income. It wus open to the a.i;sessee to
snbmit a revised estimate of hie inoomo u

## Text

2 S.C.R.
SUPREME COURT REFORTS
THE INCOME-TAX OFFICER CIRCLE II
MADU!{A, AND ANOTHER
v.
M. R. VIDYASAGAR
613
(B. P. SINHA, c. J., J.L. KAPUR. M. H!DAYATULLAJI,
J.C. ~HAH and J. H.. MunHOLKAR, JJ. )
Income Tax-Payment of advance tax-Assessed income
exceeded the estimate-Levy of interest-Power to reduce or
waive- -When cc,uld be exercised-- Indian Income-tax Act, 1922
(11 of 1922), s. 18A (6) fifth proviso-Indian Income•tax
(Amendment)
Act, 1953 (22j of 1953), s. 13-Income-tax
Ruks r.48.
The Income-tax Officer, Madura, issue 1 notice under
s. 18A (I) of the Indian Income-Tax Act, 1922, for payment
of advance tax. R, the then manager of the Hindu Undivided
family availed of the option to submit a l'evised estimate for
the years 1946-47 and 1948-49. The assessment ofthese
two years were completed respectively in November, 19)0 and
February, 1951, as the total incom~ a:;je;sed far exceeded the
estimate submitted by R, th: Ino Hll!·ti< Officer ordered the
respondent, the legal representative of R, ti;l P"Y the interest
under s. IBA (6) of the •Act. On appeal,
the Income-tax
Appellate Tribunal reduced the income and. the Income-tax
Officer in giving effect to the said order reduced the interest
and c.<llect upon the respondent to make payment.
The
respondent asked the Income-tax Officer not to levy inter·
e,t under s. ISA 16), submitting that the levy was illegal and
unju'1ified, alternatively he requested that the interest be
waived by virtue of the powers vested on the Income-tax
Officer under proviso 5 to•· 18'\ (6) which was added by
s. 13 of Act 25 of l9j3, with retrospective effect from April
1952. The Income-taJ< Officer and the Inspection Assistant
Commi,,ioner declined
t~ accede to the request. The respondent then moved the High Court at Madras for a writ
under Art. 226 cancelling the levy of interest on the ground
among ochers that refusal by the Revenue authorities to cancel
the levy was arbitrary and not based on any judicial exercise
of the discretion vested by the Act.
The High Court upheld the plea, ordered the Income tax Officer to decide whether the respondent had made out a case for the exercise
of the discretion. The only question in the appeal before the
Supreme Court was whether benefit of the said 5th proviso
to s. I SA (6) may be granted in respect of asse•smcnts of income which were . completed by the Income-tax Officer before Ap.ril 1952.
lS62
n.n.-"""'
0 .Jur Cfrtj< II
Madut~
v.
JI. B. V~,aMl.far
SWJ.
614
SUPREME OOURT REPORTS [1962] SUPP.
Htld, that the jurisdiction under 5th proviso of s. IBA
(6) of the Income-tax Act may be exercised by the incometax Officer in all cases which wrre pending on April I, 1952
before him or any superior authority having under the Act
power to modify the assessment of income.
C!v:IL APPELLATE JURISDICTION : Civil Appeal
Nos. 545 and 546 of 1900.
Appeals from the judgment and order dated
Augmt 13, 1954, of the Madras High Court in
Writ Petitions Noe. 743 and 7-!S of J 95!.
K. N. Rajagopal Sastri and P. D. Menon, for
the appellants.
The respondent did not appear.
19.62. January 17.-The Judgment of the coun
was delivered by
SHAH, J.-'Ihcse are two appeals with certificates of fitness granted by the High Court of
Judicature at Ma.drae against certain orders passed
in Writ Petitions uu<ler Art. 226 of the Colllltitution.
One Ram1111wami Iyer-father of the respondent-Wiil' aeeCBl!ed to incomP-tax in the status of a
Hindu Undivided Family. Ramaswami Iyer died
in 1949 and the respondent M.R. Vidyasagar
became the manager of the family.
The family
W&8 a partner through its man~er in a firm styled
"The Madura Knitting Compauy", and the share in
the profits of the partnership which wae registered
under the Indian Income· tax Act W&B th\l principal
source of its aaseseable income.
Under s. ISA of
the Indian Inoome-tax Act, the Hindu undivided
family was liable to pay advance tax for each of
the &BBCBSment years HJ46-4 7, I 94 7-4S and l!J4S-49.
The Income-tax (Jffice1·, Madura, fseued notices
under s. UiA (1) of the Indian Income.tax Act for
payment of &dvanoe tax on the basis of the preceding year's income. It wus open to the a.i;sessee to
snbmit a revised estimate of hie inoomo under s. ISA
(2) in respect of the year in question and Rama1wami Iyer-who w&B at the material time the
2 S.C.R.
SUPREME COURT REPORTS
615
manager-availed himself of the option to submit
a revised <'Stimate and estimated the income for
each of th9 a.sse~sment yea.rs 1946·47 and 1948-49
a.t Rs. 45,000/-. The assessments of these two
years were completed respectively on November
28, 1950 and February 2J, 195l, and the income
recPived from tht> Madura Knitting Company was
included in the. assessments under s. 23 (5). The
Income Tax Officer assessed the total income of
the Hindu undivided family for the year 19~6-47 a.t
l'l.s.
l,01,335/-
and for the year 1948-49 at
Rs. 3, L0,697 /-. As the total income assessed far
exceeded the estimat~ of Rs. 45,000/-, submitted
by the manager of the a.ssessee family, the Income
'fax Officer in making the assPssment ordered the
respondent to pay Ks. 6,999/12/- and Hs. 36',687/-
respectively for the assessment years 1946-47 and
1948-<l9 as interest. In appeals against the orders
of assessment by the Matlurn Knitting Company,
by order dated March 12, I954 the Income-tax
Appellate Tribunal reduced the income of the firm,
and on that hasis reduced tho share ofthe family
in the income of the firm for the vear I946-47 to
Rs. 8:l,3;l5/ · and
for the
yea~ · I948-49
to
Rs. 2,8:3,868/-.
Tho Income-tax Officer, Madura,
in gi.,ing effect to the orders passed by the Appellate Tribunal under the 3rd proviso to s. ISA (6)
reduced the interest to Rs. 4,:CSS/- for the year
19464 7 and to Us. 32, 714/H'/· for the year 1948-49,
and called upon the respondent to pay the arrears
of tax inclusive of interest. so adjusted. The
respondent then called upon the Income Ta:x:
Officet· not to levy interest under s. ,ISA (6) submitting that the levy was illegal and unjustified, and
in the alternative requested that the interest be
waived under the powers vested under the 5th
proviso to s. ISA (6) which was added by s. I3 of
the Indian Income-ta.:x: (Amendment) Act (25 of
1953). The Income-tax Officer declined to accede to
th11 request and the respondent's a.pplioation to the
Tiu lnc.,,,,_laJ<
0 ff1<<' Circl1 11
Madu<a
v.
M. R. V1dyasag.,
Shah J.
195Z
,.
616 SUPREME COJJRT RE;PORTS [196~]" SUPP.
~ Inspecting Assistant Commissioner for
canc1~lling
the-leyy of interest was also rejectE;d.
.The
:respondeμ't then moved two,petitions (Nos. 743 and
748) 'mder Art. ~26 of' the. Con8titution in the
M, !\· Vq;··""B"'
:ijigh poμrt, 'of,_Judicature ·at
Ma~ras for writs
cancelling the orders imposiiig1ia;l:iillty for paymtnt
of int!"r!'!st,
\)Ontending that thi: levy of penal
interest was opposed t9.law ,ind was prima jacie,
unjustified Oil. the facts .and circumstances of ,the
case. l 'i'he respondent submitted that the levy of
intere!l"t under s. 18A(6) was penal in c,harac:ter and
could not be imposed upon the legal represeptative
o.f the deceased manager wbo was not in any
manni:r responsible for the original re~urn filed by
~hjl fir}ll of which the manager was a partner. He
ajso co'ntend~d that the levy was not·warranted. by
Shah J.
,
the provjsions of the Indian Income.-tax. ''Act
inasml,lch as in respect of the assessment years in
q11estiun 't4e responqent was not the (tssessee, that
the delay in comphitipg the assessment was not
attribl,ltablii
~il.1\er ito the then .manager of the
,family,1 Bamaswl};m~ Iyer or to himself and therefqr~ .no liabi}il.y {o:r11payment of interest could. be
imposed\ ai;id ti1at i~ any even,t refusal to cancel
th!3 levy of interest 1 >fRS arbitrary and not ba~ed on
any judicial exercise <;if discretion vested in the
Income,tax Officer,
A/Division Bem;h of .the hJadras High Court
held th~t the· pto,~ision imposing liability to· pay
i.Ilteres.t under_suli-,il.~.(6) of s. 18A was not opposed
tQ law and could .be. enforced against the legal re·
presentative 0f,the'<iece.ased manager, who was a.
partner of the ass~ssee firm.
The High Court, however~ was of tlie'view that as the inct>me-tax. .Officer
and the Inspecting Assistant Commissioner had
failed'to consider·whether in. the oircumstances of
the case,. the reduction or waiver of the interest ;was
justified,,it be.ordered that the Income-tax Officer
to deoide-whethe!:__the petitioner had made out, a
case for th"6' f!Xe'.rcise of the discretion veste.d in .the
I
I
,·
'
2 S.C.R.
SUPREME COURT REPORTS
617
"i
Income-tax t>fficer to waive or reduce the interest
under the powers conferred on him by the 5th proviso of cl. \!of s. lKA. Against that order with
certificates,
fitneiS these appeals are preferred by
the Commi~ foner of Income Tax.
Section 18A which imposes iiability upon the
tax payer to make advance payment of tax was
incorporatod into the Indian Income-tax Act by
Act 11 of 1944. That section enitbles the Inoometax Officer on or after the 1st day of April in any
financial year, by order in writing, to require an
assessee to pay to the Central Government in specified
instalments
income-tax
and
super-tax
payable on Ro much of such income as is included in
the assessee's total income of the previous year in
respect of which he had been assesstd. Undtr sub-s.
(2), if the assessee who is required to pay tax by an
order under sub-s. ( l) estimates at any time
b~fore
the last instalment is d110 that the part of his' income
to which tho sub-section.applies fpr the period which
would be the previous year for an assessment for
the year next following is less than the income on
which he is required to pay tax: and accordingly
wishes to pay tax which is less than amount
he is required to pay, he may send to the
Income Tax Officer an estimate of the tiix payable
by him, and pay tax as accords with his statement.
It ig, however, providacl by sub-s. (6) inter-alia that
where in any year the as,iessee had paid tax: under
&ub-s. (2) on the basis of his own estimate and the
tax: paid is less than 80% of the tax detern1ined on
the basis of his"' r_egular assessment (so far as such
tax relates to income to which the' provisions of s.
18 do not apply) simple intere;st at the . rate of 6%
per annum from the 1st day of January in· the finaa.-
cial year in which the tax was paid upto the date
of the said regular assessment shall be payable
by the assessee
upon the
amount by which
the tax so paid falls short of the said 80%.
As
originally enacted the liability to pay interest upon
1962
The Income-tax
Offictr Ci1cle fl
Madura
v.
M. R. V1dyosaza1
ShahJ.
1116J
T/f1 /rtctnfll·la
Of/iw C frt/1 II
M..iu.a
..
Al. R. yid_,asa,"'
BJ.Al.
618 SUPREME COURT REPORTS [1962) SUPP.
the &mount by which the ta.x pa.id fell short of 80%
of tax: wa.s a.bdolur.e. The lncome·ta.x Officer had no
d1eoretfon in the ma.tter, and W38 bound to impose
lia.bility for pa) m•mt of interedt, But by s. 13 of the
Indian lucome.tax (Ameudmtnt) Act, l95J (25 of
lli53), an additional proviso was tni.cted ... o sub.a.
(6) ill the following form:
"'Provided further that in such ca.sea and
under such circumstances a.s may be prescribed,
tho Inoome·ta.x Offioer may reduce or wa.ive
the interest pa.yable by the 8.880ssoo".
Thie proviso was given retrospective effect as from
April I, 19.52. Thereafter in exercise of powers con·
ferred bv s. 59 the Central Board of Revenue a.dded
Rule 43.to the following effeot:-
"48. Tho Iri.come·tax Officer ma.y reduce
or waive the interest pa.yable under section
ISA in the ca.sos and under the circumsta.noes
mentioned below, namely:-
( I) Where the relevant a.saessmcnt
is completed moro tha.n one yea.r a.fter the
submisliion of the return, the dela.y in
aasessment not being a.ttributable to the
alll!ell866.
(2) Wbero a. pel'80n is under section
43 deemed to be a.n agent of another person and is 8811ell8ed upon tho latter's
income.
(3) Where the asse&1ee ha.s income
from an unregistered firm to which the
provisions of clause (b) of sub-section (5)
of section 23 a.re applied.
(4} Where the "previous yea.r" is the
financial year or a.ny yea.r ending near
about the close of the financial year a.nd
large profits are ma.de after the llith of
Ma.rch in circumsta.noes which could not
be foreseen.
•
-··--ir
2 S.C.R.
SUPREME COliRT REPORTS
619
(5)
Anyoase in which the Ixispecting Assistant Commissioner oonsidefs th<Lt
the
circumstances
are
such that a
reduction or waiver of the interest pay·
able under section ISA (6) is justified.
The effect of the incorporation of the 5th proviso
in s. ISA ( 6) and of Rule 4S was manifestly to
authorise the Income Tax Officer in exercise. of his
discretion to relieve against the rigour of the inflexible rule originally enacted in cl. (6) about pay·
ment of interest by the assessee when .the tax
paid by him on his estimate fell below SO% of the
tax payable on regular assessment.
The only question which falls to be determined
in these appeals is whether the benefit of the fifth
proviso to s. lSA (6) could be claimed in respect
of the assessments of the income of the respondent's
family which were completed by the Income-tax
Officer before April l, 1952. The High Court was
of the view that even if the assessment by the
Income Tax Officer was completed before April 1,
1952, if the final adjustment pursuant to the order
of the Appellate Tribunal was made after that
date the Income T11.x Officer was competent, in
exercise of the
powers with which he
was
invested
by .the
fifth
proviso
to ol. (6)
of s. ISA to reduce or waive the interest payable
by the assessee and the Income-tax officer having
failed to exercise his discretion a case was made
out for the issue of a writ under Art. 226 of the
Constitution directing that officer to
consider
whether iJ:l the circumstances of the case relief may
be granted to the respondent.
On behalf of the Commissioner of Income-tax
it is urged that the power conferred by the fifth
proviso may undoubtedly be exercised in those oases
where assessment is completed on or after April 1,
1952, but where the assessment was complettjd and
liability to pay interest had crystallized· under
1962
Tlae lntome•tax
Off'"' Cir<l• II
Madu' II
"·
M. R. Vi<fyalogtlr
Shah J.
7lt Jn·~-t1x
0 ffiut Circlt I I
Madura
Y,
M. H. V1Jyasagar
Bitah J.
f.\20
~tl BE.tE COl'BT BEFORTS [1962) SUPP.
sub s.(6) as it originally stood, the Ir>eome-tax Officer
has no power under the amen<l~d sub·stction to
reduce or waive the interest ordered to be pa.id by
the asse~see even if the procf'edings m asseBBment
are pending in appeal before the Appt>llate ASBista.nt
Commissioner or .the Appt-llate Tribunal. It wa.s
urged that the interebt under s. l8A(6l is payable
up to the date of the regular asscBRmfnt and if in
the contingencies prescribed by s. l 8A(6), as originally enacted liability to pay interest crystallized,
the lncome·taX Officer could not, in exercise of the
power invested by the amending Act reopen the
order, because the legislature had given to the
a.mending statute only a partial retroactive operation, anJ its retroactivity IJOUld not be enlarged; to
do so, would be plainly to defeat the plain intendment of the Legislature. It is unnecessary for the
purpose of these appeals to consider whether an
assessment whioh has become final before the date
on which the fifth proviso came into operation, and
whioh is not subject to any pending appeal, can be
reopened and tho benefit of the power conferred by
the fifth proviso be afforded to an assessee. The
question which fallll to be determined is whether in
a.n assessment subject to an appeal which is pending.
or which may be lawfully filed, the power to reduce
or waive the interest can be exercised. ThP.re is,
in our judgment, inherent evidenoe in tho rule
indicating that such a power can be exercised evt-n
if the regular &88e88ment is oompleted by the
Income-tax Offioer before April l, 1952. The power
vested in th&Inoome-tax Officer to reduce or waive
interest payable by a.n a.sse88eo is exoroisable "in
such ca.t<es or such circumstances as may be prescribed" by the Rules. By Rule 48 the Income-tax
Olficflr is given the power to reduce or waive interest
payable under s. I 8A(6) in the events specified
therein. By the first clause of Rule 48 where the
assessment is completed more than one year after
the submission of the return the delay in lll!llessment
2 s:c.R.
SUPRE~E COURT RE.PORTS
621
not being attributable to the assf'ssee-the power
c;f the Income-tax Officer may be exercised
There
is nothing in . the Rule which indicatc>s that the
power to grant relief may be exercised only before
the regular a~sessment iR completed by the Income·
tax Officer. The terms of clauses (1) and (5) of the
Ru le clear Iv support the vie'" that the order reducing or waiving interest may be passed even after
the order of assessment is made, and interest is
included. Again, by makin~ Act 25 of 1953 operative retrospectively from April I, 1952, the Legislature ha~ evinced an intention that
to regular
assessments made between April I. 1952, and the
date on which the Act was enacted, the fifth proviso
to s. 18A(6) may apply. The arrument tJiat liability to pay interest crystallizes when the Incometax Officer incorporates the direction for payment
of interest, because the OJ der is not mAdA nnnPnlable has no force. The order forpa;ymrnt of interest
was liable to be modified if the assessment of
income was \'1tried by the Appellate Assistant Commissioner, or by the Tribunal. It is true that
interest could be eharged npto to the date ofregular
asses8ment bv the Income-tax Officer but that does
not support the thcor,Y of cr,Ystallization of liability.
If therefore the quantum of liability waR capable of
being altered even after the date of the regular
asse~sment, the assumption that the power to give
relief against a rigid statutory provision should be
restricted to cases which are decided by the Incometax Officer onl_v after April J, 195i is not warranted.
The power of the Income-tax Officer arose only
after April I, 1952, but there is nothing in the act
to ~how that it was to be exercised onl.Y in respect
of assessments made by the In0ome-tax Officer after
that date. In our judgment, the jurisdiction under
the fifth proviso may be exercised by the Incom!ltax Officer in all oases which are pending on April l,
1952, before the Income-tax Officer or any superior
authority having under the Income-tax Act power
19 2
The /ncnm,.tax
Offlce1 Circle If
Madura
•.
M fl.· VidJ·as ,gflr
.~h1li J.
1962
Th• /nrorn,-tnx
Off1u1 Ciul1 If
A:adt1.1a
v.
Id R. V1dyrsa~ar
Shalz .I,
622 SUPREME COVRT REPORTS [1962) SUPP.
to modify tho assessment of income, or are commene<'d after that date.
In the present case, the original asses~ments
made b~· the Income-t>LX Officer in both the years in
question were modified in view of tho or1fors pll.l!sed
by tho A rip,,Jlato Tribunal in the assessment of the
i\fa<l11ra Knitting Co.
The order of tho Appellate
T~ibunal was passed on April 12, 1953, i.e. after the
d11tc on which Act 25 of 1953 came into operation.
After that date the Inoome-tax Officer was bound
to give !'!'feet to the orders of the Appellate Tribunal
a1HI to acljust liauility in· computing tho assessable
iiwomP nnd th~ tax pa yo blo thereon. Tho Incometax Uffirn being bound to adjust liability to pay
inkr .. st nnder cl. I 61 of s. I SA we S('C no reason why
in adjuoting that liability ho may not exercise the
powers with which he has b~·e11 inv<'sted si:we April.
l!l52, if the circumstancos of the case warrant such
cxerciRl'.
In •·ur view the High Court was ri.r:ht in holding that the inc"nw·tax Offi<'l'I' had tlH' power in
the case "ft he nsspssment• in question to exercise
thn 1rnthori1y conf(•rrer! by the fifth proviso tQ
s. I 8A(fll and he h:wm!J' fail"d to
<·X<'rri~e the
discretion, a 1vrit. re'luirin~ him to cn:isi<ler whether
a case is m'\dP out for the exercise of his di8crction
was prop1·rly issuf'CI.
Thi se appeals therefore fail a1<d arf' dismi~sed.
App1ni8 dismissed.
•