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Commissioner of Income-tax Vs. Shiv Hari Co. (P.) Ltd. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad High Court
Decided On
Case NumberIncome-tax Reference No. 417 of 1967
Judge
Reported in[1973]87ITR368(All)
ActsIncome Tax Act, 1961 - Sections 18A, 273 and 297(2)
AppellantCommissioner of Income-tax
RespondentShiv Hari Co. (P.) Ltd.
Appellant AdvocateB.L. Gupta and ;R.R. Misra, Advs.
Respondent AdvocateP.N. Pachauri and ;R.R. Gulati, Advs.
Excerpt:
- - the assessee appealed to the appellate assistant commissioner but was unsuccessful.pathak, j. 1. the income-tax appellate tribunal has referred the following question for the opinion of this court : 'whether, on the facts and in the circumstances of the case, the penalties levied on the assessee under section 273(b) of the act of 1961 for the assessment years 1958-59 and 1959-60 were rightly cancelled ' 2. the assessee is a limited company. for the assessment years 1958-59 and 1959-60 the assessee should have paid tax under section 18a(3) of the income-tax act, 1922. as it did not, the income-tax officer served notices under section 274(1) of the income-tax act, 1961, on the assessee to show cause why penalties should not be levied. the assessee objected to the proceedings contending that no penalty under section 273 of the 1961 act could be levied. the objection was.....
Judgment:

Pathak, J.

1. The Income-tax Appellate Tribunal has referred the following question for the opinion of this court :

'Whether, on the facts and in the circumstances of the case, the penalties levied on the assessee under Section 273(b) of the Act of 1961 for the assessment years 1958-59 and 1959-60 were rightly cancelled '

2. The assessee is a limited company. For the assessment years 1958-59 and 1959-60 the assessee should have paid tax under Section 18A(3) of the Income-tax Act, 1922. As it did not, the Income-tax Officer served notices under Section 274(1) of the Income-tax Act, 1961, on the assessee to show cause why penalties should not be levied. The assessee objected to the proceedings contending that no penalty under Section 273 of the 1961 Act could be levied. The objection was rejected. The Income-tax Officer imposed penalties of Rs. 24,000 and Rs. 10,000 for the two years, respectively. The assessee appealed to the Appellate Assistant Commissioner but was unsuccessful. He then appealed to the Income-tax Appellate Tribunal. It appears that a number of submissions were made by him before the Tribunal but the Tribunal considered it sufficient to allow the appeals on one ground alone. The ground was that the provisions of Section 273 of the 1961 Act were not attracted at all in the case a default under the repealed Act of 1922. The Tribunal pointed out that there was no specific provision in the Act of 1961 deeming that the default under Section 18A of the repealed Act of 1922 would be a default under Section 212 of the Act of 1961. At the instance of the Commissioner of Income-tax the Tribunal has referred this case.

3. It seems to us that so far as the question of law referred by the Tribunal is concerned, the reasoning on which the Tribunal has proceeded runs into conflict with what has been laid down by the Supreme Court in Commissioner of Income-tax v. Singh Engineering Works Private Ltd., [1970] 78 I.T.R. 90 (S.C.). The Supreme Court has held that Section 297(2)(g) of the Act of 1961 is applicable to the case of a default under Section 18A of the Act of 1922 and that being so, Section 273 of the Act of 1961 is attracted. In this view of the matter, the question referred must be answered in the negative.

4. Learned counsel for the assessee has pointed out that Section 297(2)(g) can be invoked only in those cases where penalty is to be imposed in respect of an assessment which is completed on or after April 1, 1962, and, he says,in the present case provisional assessments were made under Section 23B before that. The assessment order under Section 23, it is said, was also made before that date. Upon this he contends that Section 297(2)(g) does not come into play, and, therefore, Section 273 of the Act of 1961 cannot be applied. He says that this submission was raised before the Tribunal during the hearing of the appeals but the Tribunal declined to express any opinion in the matter because it considered it sufficient to dispose of the appeals on the point which we have already considered. The point now raised by learned counsel for the assessee is not the subject of the Tribunal's appellate order out of which the present reference arises. It may be that when the case goes back to the Tribunal for disposing it of conformably with the judgment of this court it may be open to the assessee to ask for a decision on this further point. It will be for the Tribunal then to decide whether it has jurisdiction in the matter.

5. There is no order as to costs. Counsel's fee is assessed at Rs. 200.


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