Commissioner of Income Tax vs Laljidas Agarwalla

G.C. Bharuka, J.—The present reference has been made by the Tribunal u/s 256(1) of the Income Tax Act, 1961 (hereinafter referred to as "the Act"), whereby opinion has been sought in respect of the following question of law :

"Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal, Patna, has rightly cancelled the penalty order passed by the Income Tax Officer u/s 271(1)(a) of the Income Tax Act, 1961 ?"

The facts are that the assessee had defaulted in filing the return for the assessment year 1970-71 by 22 months. As such, penalty proceeding was initiated u/s 271(1)(a) of the Act and a show-cause notice was issued in this regard. The notice was duly served but the assessee did not file any reply. Though the penalty proceeding was initiated and the notice was issued by Sri P. B. Audhya, the then income tax-Officer, he did not take any action in this regard. Subsequently, after about two years, the successor-income tax Officer, namely, S. N. Mishra; without issuing any fresh show-cause notice, levied a penalty of Rs. 7,525. The assessee having lost in appeal before the Appellate Assistant Commissioner preferred a second appeal to the Tribunal. Before the Tribunal, the assessee neither disputed the factum of default in filing the return nor did he advance any plea of reasonable cause to justify the delay in filing the return. Instead, the order of penalty was assailed on the technical ground that it was incumbent upon the successor-income tax Officer who had in fact imposed penalty to issue a fresh show-cause notice before passing the impugned order, The Tribunal agreed with the contention of the assessee and cancelled the impugned order.

For answering the question involved, it would be necessary to refer to Section 129 of the Act, which reads as under :

"Whenever in respect of any proceeding under this Act an Income Tax authority ceases to exercise jurisdiction and is succeeded by another who has and exercises jurisdiction, the Income Tax authority so succeeding may continue the proceeding from the stage at which the proceeding was left by his predecessor :

Provided that the assessee concerned may demand that before the proceeding is so continued the previous proceeding or any part thereof be reopened or that before any order of assessment is passed against him, he be reheard."

From a perusal of the aforesaid provision, it is clear that, in a case where during the pendency of any proceeding, any Income Tax authority is succeeded by another, the successor may continue the proceeding but the assessee has the right to demand that he be heard before any order is passed against him. This provision is similar to Section 5(7C) of the Indian Income Tax Act, 1922, and Section 39 of the Wealth-tax Act, 1957. In the case of MURLIDHAR TEJPAL Vs. COMMISSIONER OF Income Tax, PATNA., a Division Bench of this court, while dealing with a case u/s 5(7C) of the Indian Income Tax Act, 1922, observed as follows (p. 135) :

"Learned counsel for the assessee, however, relied upon a decision of the Calcutta High Court in Calcutta Tanneries (1944) Ltd., Calcutta Vs. Commissioner of Income Tax, Calcutta, . It was held in that case that the succeeding officer u/s 5(7C) of the Indian Income Tax Act had no authority to pass an order of penalty without giving the assessee a further opportunity of advancing arguments before him. With great respect we differ from the view expressed by the Calcutta High Court in this case. In our opinion, the combined effect of Section 28(3) and Section 5(7C) of the Indian Income Tax Act is that the succeeding-income tax Officer has authority to pass an order upon the explanation of the assessee produced before his predeces-sor-in-office, if the assessee had failed to exercise his right u/s 5(7C) demanding that the proceeding should be reopened. It is admitted in the present case that the assessee did not make any demand for reopening the proceeding before Sri V. Jha, the succeeding-income tax Officer, under the first proviso to Section 5(7C) of the Indian Income Tax Act. If the assessee had chosen to do so, he might have exercised his statutory right u/s 5(7C) of the Income Tax Act, and required the succeeding-income tax Officer to take a fresh explanation from him before making any order of penalty. But the admitted position is that in the present case the assessee did not exercise his statutory right u/s 5(7C). The result, therefore, is that Sri V. Jha had authority to make an order of penalty u/s 28(1)(c) of the Indian Income Tax Act, without calling for a fresh explanation from the assessee."

Recently this court had occasion to examine an identical question in Tax Cases Nos. 350 to 352 of 1980 decided on July 25, 1990, Commissioner of Wealth Tax Vs. Gilliram Suggiram, , wherein the Hon''ble the Chief Justice, while answering the question, has been pleased to observe that (at p. 448) :

"Learned counsel for the assessee has not brought to our notice that the aforesaid decision of this court has been overruled. In Commissioner of Wealth-tax Vs. Umrao Lal, , the Allahabad High Court had held that when, on receipt of a notice u/s 18(2) of the Act, the assessee had not put in appearance nor filed any written explanation, the succeeding authority was not required to afford him another opportunity of hearing. The decision in Ram Saran Dass Kapur Vs. Commissioner of Income Tax, Patella, , relied upon by the learned counsel for the assessee, is distinguishable on facts. In that case, the assessee had asked for a personal hearing and that persona! hearing was given by the officer but before he could give a decision, the case was transferred to another officer who passed the order without giving any hearing. In the instant case, however, on receipt of the notices u/s 18(2) of the Act, the assessee had neither put in any appearance nor filed any written explanation. It is true that the decisions in Anantha Naganna Chetty Vs. The Commissioner of Income Tax, Andhra Pradesh, Hyerabad, and COMMISSIONER OF Income Tax, WEST BENGAL-IV Vs. SMT. CHITRA MUKHERJEE., , do seem to support the contention of the assessee but we are bound by the decision of this court in MURLIDHAR TEJPAL Vs. COMMISSIONER OF Income Tax, PATNA., and we see no cogent reason to differ from that decision."

Respectfully relying on the aforesaid two decisions of this court, I hold that the Tribunal was not correct in cancelling the impugned penalty order and, accordingly, the question referred by the Tribunal is answered in the negative and against the assessee. In the circumstances of the case, there will be no order as to costs.

Let a copy of this judgment be remitted to the Tribunal.

G.G. SOHANI, C.J.

I agree.