Ramanand Singh and Co. vs Commissioner of Income Tax

Nazir Ahmad, J.—A statement of the case has been submitted by the Income Tax Appellate Tribunal, Patna Bench, Patna (hereinafter referred to as "the Tribunal"), u/s 256(1) of the Income Tax Act, 1961 (hereinafter referred to as "the Act"), referring the following questions of law for the opinion of this court:

"1. Whether, on the facts and in the circumstances of the case, the provisions of Section 154 of the Income Tax Act were rightly applied for levying enhanced penalty by relying on the provisions of Section 271(2) of the said Act ?

Whether, on the facts of the case, the Tribunal was justified in holding that in an appeal against an order u/s 154, the validity of an order imposing penalty u/s 273(1)(a) cannot be challenged ? "

The relevant facts of the case may be briefly stated. The Income Tax Officer had originally imposed a penalty of Rs. 2,280 u/s 271(1)(a) of the Act. Examination of the records showed that the penalty u/s 271(1)(a) of the Act was wrongly calculated. The assessee was assessed on a total income of Rs. 72,791 in the status of a registered firm. The Income Tax Officer took the view that so far as the penalty proceedings are concerned, the quantum of the penalty is calculated on the tax that would be payable treating the firm as unregistered firm. The Income Tax Officer found that the tax on unregistered firm would amount to Rs. 36,464 and since there was a delay of 50 months, penalty imposable u/s 271(1)(a) would amount to Rs. 36,400. However, since the tax on the unregistered firm itself amounted to Rs. 36,464, the Income Tax Officer took the view that the penalty would be limited to 50% of Rs. 36,464 or Rs. 18,232. The Income Tax Officer found that by mistake penalty of only Rs. 2,280 was imposed and so it was a mistake apparent from the record. The Income Tax Officer served a notice on the assessee u/s 154/155 of the Act for compliance on July 30, 1970. The assessee chose to remain silent and no written reply was filed. The Income Tax Officer, therefore, rectified the mistake in view of Section 271(2) of the Act, and u/s 154 of the Act, imposed a penalty of Rs. 18,232 in place of the original penalty of Rs. 2,280. The penalty order of the Income Tax Officer has been annexed and marked as annexure A forming part of the statement of the case.

The assessee appealed before the Appellate Assistant Commissioner. It was submitted on behalf of the assessee that in this case, the Income Tax Officer was not justified in levying penalty u/s 271(1)(a) because the return was filed u/s 139(4) of the Act which should have been considered as a return within time and for which no penalty could be levied upon the assessee. The Appellate Assistant Commissioner held that the mistake was apparent from the record and the Income Tax Officer correctly calculated the penalty imposable u/s 271(1)(a) by rectifying the original order and so the Income Tax Officer was justified in invoking the aid of Section 154 of the Act in rectifying the mistake apparent from the record. The Appellate Assistant Commissioner dismissed the appeal. The order of the Appellate Assistant Commissioner has been annexed and marked as annexure B forming part of the statement of the case.

Being aggrieved by the order of the Appellate Assistant Commissioner, the assessee appealed before the Tribunal. It was submitted before the Tribunal that the original order imposing penalty was illegal and so the order under appeal rectifying the same was also legally untenable. It was also submitted that the question of imposition of penalty is connected with the rectification thereof and the Appellate Assistant Commissioner should not have declined to consider the question as to whether the penalty was at all imposable. It was also submitted before the Tribunal that the calculation of penalty in this case involved investigation into the amount of tax paid by the firm and the partners and so it was outside the scope of an order u/s 154 of the Act. It was also submitted before the Tribunal that the rectification made by the Income Tax Officer was the result of a long-drawn process of reasoning and investigation and so the rectification should not have been made tinder Section 154 of the Act. For this purpose, reliance was placed on the decisions reportedin T.S. Balaram, Income Tax Officer, Company Circle IV, Bombay Vs. Volkart Brothers, Bombay, , Commissioner of Income Tax Vs. Oriental Carpet Manufacturers (India) P. Ltd., , B.B. Biddappa Vs. Deputy Commissioner of Agricultural Income Tax, Mysore and Another, and Commissioner of Income Tax Andhra Pradesh Vs. K. Adinarayan Murty, . It was argued on behalf of the Department that the levy of penalty u/s 271(1)(a) of the Act and the rectification of the quantum of penalty u/s 154 of the Act are two different matters and in an appeal against an order u/s 154, matters relating to the very imposition of penalty u/s 271(1)(a) of the Act could not be considered. The Tribunal held that it is well settled that there is no inherent right of appeal against an order and the right of appeal arises only when it is expressly conferred by the statute. The Tribunal observed that looking at the scheme of Section 246 of the Act, it appears that in an appeal under a particular Sub-section of Section 246, matters falling under another subsection of the said Section cannot be agitated because separate rights of appeal have been provided against separate orders in the list enumerated in the said section. For this purpose, the Tribunal relied on the decisions reported in Gaurishanker Kedia Vs. Commissioner of Income Tax, Bombay City II, and M. M. Muthuwappa Vs. Commissioner of Income Tax, Madras, , wherein it was held that in an appeal falling u/s 23(4) of the Indian Income Tax Act, 1922 (hereinafter referred to as "the 1922 Act"), matters coming under another section for which a separate right of appeal has been provided (viz., Section 27 of the 1922 Act) cannot be agitated. The Tribunal also took the view that the period of limitation prescribed u/s 249 of the Act applied separately to each order under the various sub-sections and if right of appeal against an order under a particular sub-section is lost by efflux of time, the said right cannot be revived by an appeal filed subsequently against an order under Sub-section (1) of Section 246 of the Act. The Tribunal agreed with the Appellate Assistant Commissioner that in the appeal before him, the question about the validity of imposition of penalty could not be considered as the original order imposing penalty had become final.

The argument on behalf of the assessee was that only mistakes apparent from the record can be rectified and there can be no rectification regarding matters which can be settled only by detailed investigations or long-drawn debate and process of reasoning which cannot be said to be mistakes that are apparent on the face of the record within the meaning of Section 154 of the Act. The Tribunal held that in the original order imposing the penalty, the quantum of penalty was calculated on the basis of tax payable by the assessee as a registered firm. In the rectification order, the penalty was re-calculated on the basis of the tax payable by the assessee as an unregistered firm. The Tribunal held that a plain reading of Section 271(2) of the Act clearly shows that the provisions were mandatory and they were missed or ignored in the original order. The Tribunal, therefore, held that it was a case of a mistake apparent from the record and so the Income Tax Officer was justified in invoking his powers u/s 154 of the Act on the facts and in the circumstances of the case. The Tribunal, therefore, upheld the order of the Appellate Assistant Commissioner. The order of the Tribunal has been annexed and marked as annexure C forming part of the statement of the case.

On the aforesaid facts, the aforesaid two questions have beenjreferred for our opinion.

When the argument of the case was taken up, Mr. K. N. Jain, for the assessee, did not argue before us that the rectification u/s 154 of the Act could not be made as it was not a mistake apparent from the record and that it required detailed investigations or long-drawn debate and process of reasoning. This argument which, was advanced before the Tribunal has been given up before us and so it cannot be doubted that now it has to be held that it was a case of a mistake apparent from the record which could be rectified u/s 154 of the Act.

The only argument of Mr. K. N. Jain, on behalf of the assessee, was that when the penalty order has been rectified, then the original penalty order has been substituted by the rectified order of penalty and so the assessee has a right to challenge the levy of penalty u/s 271(1)(a) of the Act.

The first question which arises for consideration in this case is whether the provisions of Section 154 of the Act were rightly applied for levying enhanced penalty by relying on the provisions of Section 271(2) of the Act. It is evident that for the assessment year 1963-64, the Income Tax Officer originally imposed a penalty of Rs. 2,280 for the delay in filing the return and there was no appeal against this order of penalty u/s 271(1)(a) of the Act. The Income Tax Officer has pointed out in annexure A that the assessee was assessed on a total income of Rs. 72,791 in the status of a registered firm. The Income Tax Officer also took the view that so far as the penalty proceedings are concerned, the quantum of penalty is calculated on the tax that would be payable treating the firm as an unregistered firm. He also found that the tax on the unregistered firm would amount to Rs. 36,464 and since there was a delay of 50 months, the penalty imposable u/s 271(1)(a) would amount to Rs. 36,464 but he limited the penalty to 50% and thus by the rectification order u/s 154 of the Act, he imposed penalty of Rs. 18,232.

It cannot be doubted that penalty u/s 271(1)(a) of the Act is imposed for delay in filing the return without any reasonable cause. Section 271(2) of the Act lays down that when a person liable to penalty is a registered firm, then, notwithstanding anything contained in the other provisions of the Act, the penalty imposable under Sub-section (1) shall be the same amount as would be imposable on that firm if that firm were an unregistered firm. Thus Section 271(2) clearly lays down that for calculation of penalty relating to a registered firm u/s 271(1)(a), the registered firm has to be treated as an unregistered firm.

It has been held in the case of Commissioner of Income Tax, etc. Vs. Assam Travels Shipping Service, that if a default as contemplated u/s 271(1)(a) of the Act is committed by a registered firm, then under Sub-section (2), the quantum of penalty would be the same as would be imposable on that firm if it were unregistered and that Sub-section (2) cannot be detached from Sub-section (1) of Section 271 while determining the quantum of penalty between the minimum and maximum limits prescribed and that the statutory minimum and maximum limits of penalty imposable u/s 271 have to be observed by any authority imposing the penalty.

It has been held in the case of K.R. Velayudha Mudaliar and Sons Vs. Additional Commissioner of Income Tax, that Sub-section (2) of Section 271 is couched in the widest possible language and it has got overriding effect in view of the express provisions contained therein, namely, "notwithstanding anything contained in the other provisions of this Act" and, consequently, whether the sub-section finds a place as a separate sub-section or finds a place as a part of Section 271(1), the language is clear and categorical.

It cannot be doubted that if the penalty u/s 271(1)(a) was imposed for the default by a registered firm, the penalty should have been calculated as provided u/s 271(2) and if the penalty is imposed under a mistake ignoring the provisions of Section 271(2) of the Act, then it cannot be doubted that it is a mistake of law committed by the authority levying the penalty and so it is a mistake apparent from the record and it can be rectified u/s 154 of the Act.

It has been held in the case of Commissioner of Income Tax Vs. Rajnagar Tea Company Ltd., that a "mistake apparent from the record" may be a mistake of law or of fact, but it must be a clear (apparent) or self-evident mistake and that if the discovery of a mistake calls for elaborate investigation either as to the legal position or the facts involved, it would not be a mistake apparent from the record. It also appears from this decision that in a case where two views are possible, you cannot take one of those views and proceed to rectify a so-called mistake on the basis of that view and that would not be rectifying a mistake apparent from the record.

It has been held in the case of India Woollen Textile Mills (Pvt.) Ltd. Vs. Commissioner of Income Tax, , by the Punjab and Haryana High Court, that where a statutory provision was completely lost sight of, the matter could be treated as an error apparent on the record and rectified u/s 13 of the Companies (Profits) Surtax Act, 1964, especially when the question whether any debatable issue was involved was not raised before the Department or the Tribunal.

It has been held in the case of Commissioner of Income Tax Vs. Mcleod and Co. Ltd., that where by misreading a section, a wrong view is taken and a wrong calculation is made, it would certainly come within the purview of Section 154 as a mistake apparent on the face of the record. It has also been held in this decision that a mistake in the allowance of relief u/s 80M made because of a misreading of Section 80A would be a mistake apparent from the record which can be rectified u/s 154 of the Act.

It was in view of these decisions that Mr. K. N. Jain, for the assessee, did not challenge the rectification u/s 154 of the Act and so it has to be held that the provisions of Section 154 of the Act were rightly applied for levying enhanced penalty by relying on the provisions of Section 271(2) of the said Act.

It cannot be doubted that when the original penalty was imposed by the Income Tax Officer u/s 271(1)(a) of the Act to the extent of Rs. 2,280, no appeal was filed against this penalty order. This is clearly found in the statement of the case in paragraph 3 at page 9 of the brief. Mr. K. N. Jain has submitted that when the penalty order was rectified by the Income Tax Officer u/s 154 of the Act on July 30, 1970, by annexure A, then the assessee has got a right to challenge the substituted amount of penalty as the penalty amount is enhanced and so he is entitled to challenge the levy of penalty u/s 271(1)(a). On the other hand, Mr. B. P. Rajgarhia, for the Revenue, has submitted that when no appeal was filed from the original order of penalty u/s 271(1)(a) of the Act, then if the penalty is enhanced by the rectification order, the assessee is only entitled to challenge the legality of the order u/s 154 but he is not entitled to challenge that no penalty is imposable u/s 271(1)(a) of the Act. Mr. Rajgarhia has submitted that the penalty u/s 271(2) of the Act is the only method of calculation and it is not as if the penalty has been imposed for the first time u/s 271(1)(a) of the Act.

Mr. K. N. Jain has relied on the case of CCT v. North Ramgarh Coal Company Private Limited [1974] 33 STC 469(RAM), which is a decision of the Patna High Court, where it has been held that the power of review conferred on the Deputy Commissioner under s. 32 of the Bihar Sales Tax Act, 1959, is distinct from the appellate power conferred on him u/s 30 of the Act. It has also been held in this decision that if a review is allowed and any order passed in appeal is changed, then a revision would be competent before the Tribunal not from the order of review but from the fresh and substituted order passed in. appeal. It has also been held in this decision that when a review is dismissed, then the order, rejecting the review remains an order, pure and simple, passed u/s 32 of the Act and by construction, it is not possible to treat such an order as an order passed, in effect and substance, u/s 30 of the Act, and consequently no revision lies to the Tribunal u/s 31 read with Section 34A of the Act from an order of the Deputy Commissioner u/s 32 of the Act refusing to review an appellate order passed by him u/s 30 of the Act. In the Bihar Sales Tax Act, 1959, Section 32 lays down that subject to such rules as may be made by the State Government under this Act, any authority appointed u/s 8 or the Tribunal may review any order passed by it if such review is, in the opinion of the said authority or the Tribunal, as the case may be, necessary on account of a mistake which is apparent from the record. A proviso has also been added to Section 32 to the effect that no such review, if it has the effect of enhancing the tax or penalty or both, or of reducing a refund, shall be made unless the said authority or the Tribunal, as the case may be, has given the dealer a reasonable opportunity of being heard. On the basis of Section 32 of the Bihar Sales Tax Act, 1959, Mr. K. N. Jain has submitted that similar provisions are contained u/s 154 of the Act and so if the rectification has been allowed and the penalty has been enhanced, then it should be treated as a substituted order of penalty and so he assessee is entitled to challenge the imposition of penalty under sec-ion 271(1)(a) itself. I find that there are High Court decisions under the Income Tax Act and so it is not safe to decide the present case on the basis of the decision of the Patna High Court under the Bihar Sales Tax Act, 1959.

Mr. K. N. Jain has also relied on the case of GOPI LAL Vs. COMMISSIONER OF Income Tax, DELHI AND RAJASTHAN., , which is a decision of the Punjab High Court, where it has been held that an appeal lies to the Appellate Assistant Commissioner against the order of the Income Tax Officer, made in pursuance of a direction of the Appellate Tribunal given u/s 33(5) of the 1922 Act, reallocating the profits of a firm in the hands of its partners and that from the order of the Appellate Assistant Commissioner on such an appeal, a further appeal lies to the Appellate Tribunal, even where the Appellate Assistant Commissioner has dismissed the appeal to him as incompetent. u/s 33(5) of the 1922 Act, where as a result of an appeal any change is made in the assessment of a firm or association of persons or a new assessment of a firm or association of persons is ordered to be made, the Appellate Tribunal may authorise the Income Tax Officer to amend accordingly any assessment made on any partner of the firm or any member of the association. The facts of this case are not applicable to the facts before me.

There are various decisions to the effect that no appeal lies against the order of rectification u/s 35 of the 1922 Act, even though the rectification u/s 35 of the 1922 Act enhances the amount of tax.

It has been held in the case of MANDAL GINNING AND PRESSING CO. LTD. Vs. COMMISSIONER OF Income Tax. KESHAVLAL HIRACHAND v. COMMISSIONER OF Income Tax. DIGVIJAY WOOLLEN MILLS LTD. v. COMMISSIONER OF Income Tax., that when an order of rectification is passed u/s 35(1) of the 1922 Act, it undoubtedly rectifies the assessment u/s 23 and is a part of the procedure for ascertainment and imposition of tax liability, but the enhanced tax liability which results owes its validity to the exercise of power u/s 35(1) and not to the exercise of power u/s 23. It has also been held in this decision that there is no mandate that when the Income Tax Officer rectifies an assessment u/s 35(1), he must follow the procedure laid down in Sections 22 and 23 as laid down u/s 34, nor is there any fiction created by the statute that when an assessment is rectified in exercise of the power conferred u/s 35(1), the rectified assessment shall be deemed to be an nssessment u/s 23 or shall be treated as an assessment u/s 23. It has also been held that a right of appeal is given u/s 30(1) against various orders and each of the orders against which a right of appeal is conferred is described by reference to the source of power under which it is made and an appeal lies from an assessment made u/s 23 but the assessee has no right of appeal u/s 30(1) against an order of rectification made u/s 35(1) of the 1922 Act.

It has been held in the case of Commissioner of Income Tax, Madras Vs. Vellingiri Gounder and Brothers, Coimbatore, , by the Madras High Court that no appeal lay to the Appellate Assistant Commissioner against the order of the Income Tax Officer u/s 35 of the 1922 Act. Similar view has been held in the case of Vr. C. Rm. Adaikkappa Chettiar Vs. Commissioner of Income Tax, .

Mr. B. P. Rajgarhia has submitted that when provision has been made for appeal against a rectification order u/s 154 of the Act, then it should be held that the appeal can lie only against the rectification order and not against the original order. He has, therefore, submitted that when no appeal was filed against the original penalty order imposing a penalty of Rs. 2,280, then the penalty order became final and so when a rectification order was made u/s 271(2) of the Act, then the assessee is entitled only to challenge the order of rectification and not the original penalty order and the assessee cannot assert that the original penalty order was illegal. For this purpose, Mr. Rajgarhia has relied on the case of Arvind N. Mafatlal Vs. Income Tax Officer, North Satara, . In this decision, it has been held that where the assessee does not prefer an appeal against the original order of assessment and the order becomes final, he is not entitled to contend, when a notice for rectification of an error is later issued u/s 35 of the 1922 Act, that besides that error there are other errors in the order of assessment to be rectified.

Mr. B. P. Rajgarhia has also relied on the case of Gaurishanker Kedia Vs. Commissioner of Income Tax, Bombay City II, In this case, a notice u/s 34(1)(a) of the 1922 Act read with Section 22(2) was served on the assessee. The assessee did not furnish any return and the Income Tax Officer made an assessment to the best of his judgment u/s 23(4) of the 1922 Act. When a notice of demand was issued, the assessee applied u/s 27 to have the assessment cancelled. That application was dismissed. No appeal was filed by the assessee against that order u/s 27. He, however, filed an appeal against the order of assessment made u/s 23(4) of the Act, but that appeal was dismissed. On further appeal, the assessee questioned the jurisdiction of the income tax Officer to invoke Section 34 and contended further that he did not carry on any business in Bombay. It was in those circumstances that the Bombay High Court held that the appeal which the assessee preferred against the best judgment assessment u/s 23(4) of the 1922 Act was necessarily confined to the questions regarding the correctness of income determined and correctness of the tax assessed and the Tribunal was, therefore, justified in not dealing with the contentions of the assessee as regards the validity of the proceeding u/s 34. It was also held in this decision that when the assessee failed to appear on the date of hearing and chose to file an appeal u/s 30(1) against the assessment u/s 23(4), his appeal was confined, only to the quantum of income or tax determined and it was, not open to the assessee to raise any other contention in that appeal as regards the validity of the order made u/s 23(4). The aforesaid last two decisions support the contention of Mr. B. P. Rajgarhia. The submission of Mr. Rajgarhia is that when originally the penalty u/s 271(1)(a) was imposed to the extent of Rs. 2,280, the assessee did not file any appeal against the original penalty order and so the original penalty order has become final. Under such circumstances, when the Income Tax Officer rectified the original penalty order u/s 154 of the Act, the assessee could only appeal against the rectification order u/s 154 of the Act. He has pointed out that u/s 246(f) of the Act, an appeal u/s 154 of the Act is provided. Mr. Rajgarhia, also submitted that the appeal can relate only to the matter as to whether the rectification order could be validly passed. On the other hand, Mr. K. N. Jain, for the assessee, has submitted that there is an appeal provided u/s 246(o) of the Act against imposition of penalty u/s 271 of the Act.

It cannot; be doubted that when the original penalty u/s 271(1)(a) was imposed, the assessee had right of appeal but the assessee did not prefer any appeal against the penalty levied u/s 271(1)(a). It cannot be doubted that the penalty order u/s 271(1)(a) has become final. The assessee now can appeal only against the rectification order u/s 246(f) of the Act. The assessee in the appeal against the rectification order will not be entitled, to challenge that the Income Tax Officer had no jurisdiction to impose penalty u/s 271(1)(a) of the Act.

In view of my discussions above, I hold that the assessee in an appeal against an order under, Section 154 of the Act could not challenge the validity of the order imposing penalty u/s 271(1)(a) of the Act. In view of my discussions above, I hold that the provisions of Section 154 of the Act were rightly applied for levying enhanced penalty by relying oil the provisions of Section 271(2) of the Act and the Tribunal was justified in holding that in an appeal against an order u/s 154, the validity of the order imposing penalty u/s 271(1)(a) cannot be challenged.

Under the circumstances, both the questions are answered in the affirmative and in favour of the Revenue and against the assessee. There will, however, be no order as to costs.

Uday Sinha, J.

I agree.