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R. Abdul Azeez Vs. Commissioner of Income Tax, Karnataka-i - Court Judgment

LegalCrystal Citation
Overruled ByC.I.T. Bangalore v. R. Sharadamma
SubjectDirect Taxation
CourtKarnataka High Court
Decided On
Case NumberI.T.R.C. Nos. 150 and 151 of 1978
Judge
Reported in[1981]128ITR547(KAR); [1981]6TAXMAN33(Kar)
ActsIncome Tax Act, 1961 - Section 148, Income Tax Act, 1961 - Section 154(1), Income Tax Act, 1961 - Section 154(1), Income Tax Act, 1961 - Section 253(1), Income Tax Act, 1961 - Section 271, Income Tax Act, 1961 - Section 271, Income Tax Act, 1961 - Section 271(1), Income Tax Act, 1961 - Section 274, Income Tax Act, 1961 - Section 274(2), Income Tax Act, 1961 - Section 280K, Income Tax Act, 1961 - Section 280R, Income Tax Act, 1961 - Section 280T
AppellantR. Abdul Azeez
RespondentCommissioner of Income Tax, Karnataka-i
Advocates:K.R. Prasad, Adv.
Excerpt:
[m.k. srinivas iyengar; m. rama jois, jj.] the taxation laws (amend.) the tribunal held that on and after april 1, 1976, the iac had jurisdiction in respect of the proceedings which were referred and pending prior to april 1, 1976. act, 1975, the iac had no jurisdiction to impose the penalty. section 6 of the general clauses act did not save the proceedings as there is no vested right in the procedure. (ii) even assuming that s. 6 of the general clause act would save a proceedings instituted under a repealed law, the said provisions was not at all attracted to this case as sub-s. 11. section 6 of the general clause act reads as follows : effect of repeal. section 6, inter alia, provides for the continuance of legal proceedings instituted for the imposition of penalties under a repealed.....rama jois, j.1. these two references have been made by the income-tax appellate tribunal, bangalore bench, at the instance of the assessee and they have referred the following questions :"1. whether, on the facts and in the circumstances of the case and having regard to the amendments to the relevant provisions brought about by the taxation laws (amendment) act, 1975, the tribunal was justified in concluding that the inspecting assistant commissioner had jurisdiction to levy the impugned penalty ?2. whether the tribunal was justified in coming to the conclusion that the order of penalty dated september 22, 1976, was not barred by limitation ?3. whether, on the facts and in the circumstances of the case, the upholding of the levy of penalty in a sum of rs. 67,300 (rs. 70,500 for 1970-71).....
Judgment:

Rama Jois, J.

1. These two references have been made by the Income-tax Appellate Tribunal, Bangalore Bench, at the instance of the assessee and they have referred the following questions :

"1. Whether, on the facts and in the circumstances of the case and having regard to the amendments to the relevant provisions brought about by the Taxation Laws (Amendment) Act, 1975, the Tribunal was justified in concluding that the Inspecting Assistant Commissioner had jurisdiction to levy the impugned penalty ?

2. Whether the Tribunal was justified in coming to the conclusion that the order of penalty dated September 22, 1976, was not barred by limitation ?

3. Whether, on the facts and in the circumstances of the case, the upholding of the levy of penalty in a sum of Rs. 67,300 (Rs. 70,500 for 1970-71) by the Tribunal was justified although the Inspecting Assistant Commissioner had, while levying the penalty, taken into consideration the concealment as found both by the Income-tax Officer and by the Appellate Assistant Commissioner ?"

2. Briefly, the facts are as follows :

The assessee is the same in both these references ; the assessment years are 1969-70 and 1970-71. The income-tax returns were filed by the assessee for the two years on September 10, 1969, and August 4, 1970 respectively. After the assessment were made, certain concealments were noticed and notices under s. 148 of the I.T. Act, 1961 (hereinafter called "the Act"), were issued to the assessee. Reassessments were made on March 12, 1973. The concealment noticed for both the years exceeded a sum of Rs. 25,000. Hence, the ITO referred the matter to the IAC in view of the provisions of sub-s. (2) of s. 274 as it stood on the said date.

3. Prior to April 1, 1976, and after April 1, 1971, the ITO was empowered to impose penalty under s. 271 in all cases in which the concealment was Rs. 25,000, he was required to refer the matter to the concerned IAC for passing necessary orders. The Taxation Laws (Amend.) Act, 1975, brought about certain changes in the relevant provisions of the Act. These amendments were given effect to from April 1, 1976. By s. 65 of the Amending Act, sub-s. (2) of s. 274 was omitted. Corresponding amendments were made to s. 271 also. According to the proviso to s. 271(1)(iii) of the Act, the ITO was required to take the previous approval of the IAC before imposing the penalty in all cases where the concealed income exceeded a sum of Rs. 85,000. The effect of the amendment was that the ITO was invested with unlimited jurisdiction to impose penalty but only subject to the condition that in cases where the concealment exceeded Rs. 25,000 he had to take the previous approval of the IAC. After the above amendment was made, the IAC passed orders imposing penalty on the assessee for both these years on September 22, 1976. The assessee preferred appeals against the orders before the Income-tax Appellate Tribunal. The Tribunal held that on and after April 1, 1976, the IAC had jurisdiction in respect of the proceedings which were referred and pending prior to April 1, 1976. The Tribunal also rejected the contention of the assessee that the penalty imposed was barred by limitation. Another contention urged before the Tribunal was that certain concealments which had not been noticed by the IAC were noticed by the AAC in the appeals against reassessment and, therefore, it was for the AAC to initiate the proceedings in respect of concealments and, therefore, the entire proceedings before the IAC was without jurisdiction. The Tribunal accepted this contention partly. It held that it was competent for IAC to levy penalty in respect of the concealments to the extent found by the ITO. Thereafter, the assessee made an application before the Tribunal to made a reference to this court under s. 256(1) of the Act. On the said application the Tribunal referred the three question set out earlier.

4. Sri K. R. Prasad, learned counsel for the assessee, contended that on and after April 1, 1976, with effect from which date sub-s. (2) of s. 274 of the Act was omitted by the Taxation Laws (Amend). Act, 1975, the IAC had no jurisdiction to impose the penalty. In support of this contention, he made three submission as follows :

(i) With the omission of s. 274(2) the IAC was divested of the jurisdiction with effect from April 1, 1976. Section 6 of the General Clauses Act did not save the proceedings as there is no vested right in the procedure. Change of forum is also a matter of procedure. Therefore, on and after April 1, 1976, the penalty proceedings were competent only before the ITO. Hence the orders passed by the IAC on September 22, 1976, were without jurisdiction.

(ii) Even assuming that s. 6 of the General Clause Act would save a proceedings instituted under a repealed law, the said provisions was not at all attracted to this case as sub-s. (2) of s. 274 of the Act was omitted, and not repealed.

(iii) In any event, there are clear indications available in the amending Act to show that it was not the intention of the Legislature to save the power of the IAC in respect of reference already made before April 1, 1976.

5. In support of his first submission, the learned counsel relied on the decision of the Supreme Court in Maria Christine de Souza Soddar v. Maria Zurna Pereira Pinto, , and a decision of this court in Purushotham Sakharam Shah v. Prabhu Bharama Sutar [1968] 1 Kar LJ 570.

6. In support of his second submission that s. 6 of the General Clauses Act has no application in cases where a provision is omitted instead of being repealed, he relied on a decision of the Supreme Court in Rayala Corporation (P.) Ltd. v. Director of Enforcement, New Delhi, AIR 1970 SC 494.

7. In support of his third submission, he invited our attention to the deletion of s. 154(1)(bb) which conferred power on the IAC to correct his orders imposing penalties as also the omission of reference to sub-s. (2) of s. 274 in s. 253(1)(b) of the Act as a result of which the provisions for appeal against an order made under sub-s. (2) of s. 274 of the Act was omitted, and also addition of a proviso below s. 271(1)(iii), according to which ITOs are required to seek previous approval before imposing penalties in cases where the concealment of income exceeded a sum of Rs. 25,000.

8. Sri S. R. Rajasekhara Murthy, learned counsel appearing for the revenue, on the contrary submitted that s. 6 of the General Clauses Act was applicable and, therefore, every proceedings before the AAC on a reference made by the ITO under the provisions of s. 271 read with s. 274(2) of the Act as they stood before the amendment on April 1, 1976, were saved. Therefore, he submitted that only the IACs were competent to pass final orders in those proceedings. In support of this submission, he relied on the decisions of the Supreme Court in New India Insurance Co. Ltd. v. Smt. Shanti Misra , Mohd. Idris v. Sat Narain, , the judgment of this court in W.P. No. 3143 of 1976, dated June 7, 1979 (Bangalore District Co-operative Central Bank Ltd. v. State of Karnataka [1981] 58 FJR 159) following the judgment of the Supreme Court in New India Insurance Co. Ltd. , and a decision of the Bombay High Court in Sripatrao Dajisaheb Ghatge v. State of Maharashtra, [FB]. On the basis of the above decisions, he argued that it has been the consistent view taken by all the courts that whenever there is repeal of law, unless the right of a party is taken away specifically, the proceedings instituted under the pre-exising law before the repeal can be continued before the same forum. Therefore, he submitted that in the present case also as the references had been made by the ITO before April 1, 1976, according to the provisions of the Act, as they stood at that point of time, it was competent for the IAC to proceed to pass final orders. He further submitted that there was nothing in the amending Act of 1975 which show the intention of the Legislature not to save the power of the IAC which was available to him under sub-s. 274 of the Act before April 1, 1976. With reference to the submission made on behalf of the assessee that omission does not tantamount to repeal and, therefore, s. 6 of the General Clauses Act is not attracted, the relied on a decision of the Madras High Court in J. K. K. Angappan v. ITO , in which the Madras High Court had held that the observations in the judgment of the Supreme Court on the point should be confined to the facts of the said case.

9. As regards the second question arising for our consideration, the learned counsel for the assessee did not dispute that the same is covered by the decision of this court in CIT v. M. Nagappa [1978] 114 ITR 707. Therefore, the second question has to be answered in the affirmative.

10. We proceed to consider the second submission made for the petitioner first, i.e., as to the effect of s. 65 of the Amendment Act of 1975 by which sub-s (2) of s. 274 was omitted. The said section reads :

"In section 274 of the Income-tax Act, sub-section (2) shall be omitted."

11. Section 6 of the General Clause Act reads as follows :

"6. Effect of repeal. -Where this Act, or any Central Act of Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not -

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, any such penalty, forfeiture or punishment may be imposed as if the Repealing Act or Regulation had not been passed."

12. Section 6, inter alia, provides for the continuance of legal proceedings instituted for the imposition of penalties under a repealed law. This is, however, subject to the condition that a different intention does not appear from the provisions of the repealing Act.

13. The argument addressed for the assessee was that s. 6 of the General Clauses Act was applicable, only when a provision was repealed an not when it was omitted by an Act of the Legislature. As stated earlier, in support of this submission on behalf of the assessee, the decision of the Supreme Court in Rayala Corporation, AIR 1970 SC 494, was relied on. In the said case the question for consideration was whether notwithstanding the omission of r. 132-A of the Defence of India Rules, 1962, a person could be prosecuted for the violation of the said rule before it was omitted. Clause (2) of the Defence of India (Amendment) Rules, 1965, by which r. 132-A of the 1962 Rules was omitted, reads as follows :

"In the Defence of India Rules, 1962, rule 132A (relating to prohibition of dealings in foreign exchange) shall be omitted except as respects the things done or omitted to be done under that rule."

14. The Supreme Court held that as the above rule was omitted and not repealed, s. 6 of the General Clauses Act could not be invoked. The relevant part of the judgment reads as follows (p. 503) :

"In the case before us, section 6 of the General Clauses Act cannot obviously apply on the omission of rule 132A of the D.I. Rules for the two obvious reasons that section 6 only applies to repeals and not to omissions, and applies when the repeal is of a Central Clauses Act or Regulation and not of a rule. It section 6 of the General Clauses Act had been applied, no doubt this complaint against the two accused for the offence punishable under r. 132A of the D.I. Rules could have instituted even after the repeal of that rule."

15. In the aforesaid portion of the judgment the Supreme Court in coming to the conclusion that s. 6 of the General Clauses Act could not be invoked for sustaining proceedings instituted for violation of r. 132A of the D.I. Rules before it was omitted, gave two reasons, i.e., (1) s. 6 was not attracted because it was omitted and not repealed, and (2) that s. 6 was also not attracted as the said section applies only to repeals of Central Act of Regulation and not to rules. In view of the pronouncement made in the above judgment, we cannot entertain the contention urged for the respondent to the effect that an omission is equal to repeal. The learned counsel appearing for the revenue, however, relied on the judgment of the Madras High Court in J. K. K. Angappan . In the said judgment on behalf of the assessee reliance was placed on the portion of the judgment of the Supreme Court extracted above and it was argued that the omission of ss. 280K, 280R and 280T of the Act cannot be considered as equal to a repeal and s. 6 of the General Clauses Act could not be invoked. The court held that the observations of the Supreme Court in the aforesaid case should be confined to the facts of that case as their Lordships were concerned in that case with the omission of the rule and, therefore, they stated that s. 6 of the General Clauses Act would not apply to the omission of a rule. In our opinion, the clear expression of the opinion in the judgment of the Supreme Court in Rayala Corporation, AIR 1970 SC 494, cannot be explained away in that way. As pointed out earlier, one of the specific grounds on which the Supreme Court decided the question, namely, that s. 6 of the General Clauses Act was not attracted to the provisions by which r. 132A of the D.I. Rules was omitted was that it was a case of omission and not repeal. The said ratio is binding on this court. Therefore, in our opinion, as sub-s. (2) of s. 274 of the Act was omitted by s. 65 of the Amending Act, s. 6 of the General Clauses Act cannot be invoked. Therefore, we accept the second submission made for the assessee in support of his contention. If s. 6 of the General Clauses Act cannot be invoked, the learned counsel for the revenue also did not dispute that there was no other provision on which he could rely for saving the proceedings before the IAC even after April 1, 1976.

16. We shall not consider the correctness of the third submission made for the assessee. The submission was that even on the basis that the omission of sub-s. (2) of s. 274 of the Act is equal to a repeal and, therefore, s. 6 of the General Clauses Act applies, the said section did not save the proceedings as a different intention clearly appears from the provisions of the Amending Act. Before considering this question, we should refer to the principles laid down by the Supreme Court in T. S. Baliah v. T. S. Rangachari, ITO . In the said case, the Supreme Court, has laid down the principle on which the applicability or non-applicability of s. 6 of the General Clauses Act should be decided. The relevant portion of the judgment at page 793 reads as follows :

"The principle of this section is that unless a different intention appears in the repealing Act, any legal proceeding can be instituted and continued in respect of any matter pending under the repealed Act as if that Act was in force at the time of repeal. In other words, whether there is a repeal of an enactment the consequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears in the repealing statute. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject the court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The question is not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. Section 6 of the General Clauses Act, therefore, will be applicable unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new statute and the mere absence of a saving clause is by itself not material."

17. Having regard to the above guidelines laid down by the Supreme Court, we have to consider the effect of the consequential changes made in the I.T. Act by the Amending Act of 1975, apart from omitting sub-s. (2) of s. 274. They are ar follows :

(i) Clause (bb) of sub-s. (1) of s. 154 of the Act conferred power on the IAC to rectify his orders made under sub-s. (2) of s. 274. By s. 48 of the Amending Act, clause (bb) of s. 154(1) was omitted.

(ii) By s. 60 of the Amending Act reference to sub-s. (2) of s. 274 in clause (b) s. 253(1) was also omitted.

Clause (b) of s. 253(1) related to the provision for appeal which an assessee could prefer against the order made by the IAC in exercise of his powers under sub-s. (2) of s. 274.

(iii) By s. 61 of the Amending Act, a proviso was added to s. 271(i)(iii) according to which the ITO was required to seek the previous approval of the IAC in cases where the concealment exceeded a sum of Rs. 25,000.

18. In our view, these three consequential amendments made simultaneously with the omission of sub-s. (2) of s 274 of the Act clearly indicate the legislative intention to destroy the continuance of the power of the IAC even in respect of matters which had already been referred to him by the ITOs. prior to April 1, 1976. In particular, we may point out that if the legislative intention was that the IAC should continue to pass orders even after April 1, 1976, in matters referred by the ITOs before the said date, the Legislature would not have omitted the provision contained in s. 154(1)(bb). In other words, the power of rectification would have been retained so that it may be exercised in respect of orders passed after April 1, 1976. The omission of s. 154(1)(bb) is consistent with the intention of the Legislature that the IACs were not competent to pass any order imposing penalty on or after April 1, 1976. The deletion of reference to s. 274(2) in s. 253(1)(b) also given the same indication. If the IACs were allowed to pass orders after April 1, 1976, the right of the assessee to prefer appeals against such orders would also have been retained. Further, the addition of a proviso to s. 271(i)(iii) of the Act clearly indicates that on and after April 1, 1976, the power of the IAC was only to accord previous approval in cases where the concealment exceeded Rs. 25,000 when the matter is referred by the ITOs and not to pass orders himself imposing the penalty. In this behalf, it is also necessary to point out that under sub-s. (1) of s. 271 of the Act, the ITO had throughout been the competent authority to find out the concealment and to initiate penalty proceedings subject to the condition that earlier to April 1, 1976, he was required to refer all cases where concealment was above Rs. 25,000 to the IACs for initiation of penalty proceedings in view of the non obstante clause contained in sub-s (2) of s. 274 of the Act. By the deletion of sub-s. (2) of s. 274 and addition of a proviso to s. 271(i)(iii) of the Act, the Legislature has provided that the same officer should deal with all the proceedings relating to the penalty subject to the condition that the previous approval of the IAC should be taken if the concealment exceeded Rs. 25,000.

19. It was, however, urged for the revenue that if the legislative intention was that the ITO alone was competent to continue even the penalty proceedings which had been referred to the IACs, the Legislature would have incorporated a provision for transfer of cases from the file of the IAC to the file of the ITOs.

20. In our view, even in the absence of a provisions for transfer, such a consequence is obvious, if on a correct interpretation of s. 274(2) of the Act, the IAC has no power to pass any order after April 1, 1976, and only the ITO had such a power on an after the said date. In this behalf, we may refer to a decision of this court in M. Bhoja Hegde v. Lokayya Poojari [1961] Mys LJ 30 as also the decision inV. Muni Reddy v. Mysore State Transport Appellate Tribunal [1974] 1 Kar LJ 291 (Kar.). The ratio of both these decisions is that whenever there is a change of forum brought about by a change of law, even in the absence of a provision for transfer, all the proceedings which were pending before an authority before the change of law would have to be transferred to the authority competent to deal with the matter under the after such change was effected.

21. The only other submission that survives for consideration is the first submission to the effect that if s. 6 of the General Clause Act applies Whether the proceedings could be continued before the IAC as contended for the revenue or even if s. 6 is applicable the continuance of proceedings is not saved as contended for by the assessee. Though it is unnecessary for us to decide the correctness of the first submission, as considerable arguments were addressed on this question on both sides, we consider it necessary to set out the rival contentions. The submission made on behalf of the assessee relying on the judgment of the Supreme Court in Maria Christine de Souza Soddar, and the decision of this court in Purushotham Sakharam Shah [1968] 1 Kar LJ 570 was to the effect that the change of forum is also a matter of procedure and there is no right vested in a matter of procedure. Therefore, it was submitted for the assessee that even if s. 6 of the General Clauses Act and in particular clause (e) applied what was saved was the power of the department to impose a penalty and not the forum and hence the proceedings could not be continued before the IAC. On the other hand, the view canvassed for the revenue relying upon the judgment of the Supreme Court in New India Insurance Co. Ltd. , the judgment of this court in W.P.No. 3143 of 1976 (Bangalore Dist. Co-operative Central Bank Ltd. v State of Karnataka - [1981] 58 FJR 159) following the said judgment, the decision of the Bombay High Court in Shripatrao Dajisaheb Ghatge, [FB] and another decision of this court in A. V. Ibrahim v. Mandepanda Cariappa, AIR 1971 Mys 298, was to the effect that the jurisdiction to continue the proceedings before an officer before whom the proceedings have been initiated, is not a mere matter of procedure, but a substantive right and, therefore, the concerned authority would have jurisdiction to make final orders on pending proceedings.

22. At the outset, we have to point out that the basis on which the question which arose in all the above cases was, as to whether a party who had right to a remedy under the law by way of instituting a legal proceedings before a particular court or tribunal or authority and who had instituted any proceeding before a court, tribunal or authority in exercise of such right had right to pursue the said remedy to finality before the same forum and even before the appellate forum which was available at the time of institution of the proceeding notwithstanding the repeal of that law or the taking away of such jurisdiction and vesting it in another court or tribunal by a subsequent legislation enacted after the initiation of the proceedings. The consistent view taken in the above decisions of which reliance was placed on behalf of the revenue which is similar to the view taken by the Supreme Court in Garikapati Veeraya v. Subbiah Choudhary, , was that the party, who had already instituted a legal proceeding before a court or tribunal or forum which had jurisdiction to entertain the proceedings on the date of institution, had the vested right to pursue the matter to a finality before the very forum before whom he had instituted the proceedings as also before the appellate forum which was available to him as on the date of institution of the proceedings unless such right was taken away by an express provision contained in the subsequent legislation. In our view the basis and the ratio of all the aforesaid decisions are not opposite to the question which arises for consideration in these cases. As far as a proceedings for the imposition of penalty is concerned, neither the assessee nor the ITO nor the IAC are in the position of a party to a litigation who intends to pursue a legal proceeding already instituted by him, to a finality in the same forum notwithstanding the fact that the said forum had been divested of the jurisdiction by a subsequent legislation. In the present case, it is a case of exercise of power concerned by a statute on a particular authority. Therefore, it appears that the only question which would be relevant in a case of this type is to find out as to whether the authority, who has passed the order had the requisite power or jurisdiction conferred by law when it passed the order. An officer would be competent to initiate proceedings under a statute if the power is vested in him on the date of initiation; it would be competent for him to continue the proceedings if the power continues to vest in him; and it would be competent for him to pass final orders if on the said date also the power to pass final orders continue to vest in him. If, at any time subsequent to the initiation of the proceedings by an amendment made to the law under which the power was conferred on an officer to initiate the proceedings, the said officer is divested of such power without any reservation and the same is vested in another officer, the former loses the power to deal with the case and the latter alone can exercise the statutory power vested in him. In I.T.R.C. 200 and 201 of 1975 (Addl. CIT v. M. Y. Chandragi [1981] 128 ITR 256) decided by us today, in a separate order, we upheld the contention of the revenue that though concealment of income was made by the assessee in that case prior to April 1, 1971, and though on the date of concealment the ITO had no jurisdiction to initiate proceedings against him for the imposition of penalty as it exceeded Rs. 1,000, he was competent to initiate proceedings after April 1, 1971, against the same assessee, as from that date, he was given the power to impose penalty in all cases where the concealment did not exceed Rs. 25,000 by the Taxation Laws (Amend.) Act, 1970. We rejected the contention of the assessee to the effect that the date of concealment determines the jurisdiction of the officer, disagreeing with the view taken by the Madras High Court in Continental Commercial Corporation v. ITO . On the facts of these cases, there is no dispute that on and after April 1, 1976, the IAC was divested of the power to pass orders imposing penalties in view of the omission of sub-s. (2) of s. 274 of the Act. There is no saving clause saving his powers in respect of matters pending before him. Therefore, on and after that date, the ITO and not the IAC, who was invested with the power, to pass orders imposing penalty, as the jurisdiction of the ITO in that behalf became unlimited. This is only subject to the condition incorporated in the proviso to s 271(1)(iii) of the Act to the effect that if the concealment exceeds Rs. 25,000 he has to take the previous approval of the IAC. Therefore, it appears to us that the question of existence of any vested right to a remedy before the same forum, or its non-existence on the ground that a change of forum is mere matter of procedure in which there is no vested right may not arise for consideration in a case of this type, However, in view of our conclusion on the first two submission, it is unnecessary for us to decide the question arising out of first (sic) submission.

23. In the result we hold that he IAC had no authority to pass orders imposing penalty under s. 271(1)(c) of the Act on and after April 1, 1976.

24. In accordance with our conclusions, we answer the three question referred as follows :

(1) The first question is answered in the negative and in favour of the assessee, and that, on the facts and in the circumstances of the case, the IAC had no jurisdiction to levy the impugned penalty.

(2) The second question is answered in the affirmative, and that the order of penalty dated September, 22, 1976, was not barred by limitation.

(3) The answer to the third question in unnecessary as the same has become academic in view of our answer to the first question.


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