TMI Blog1975 (7) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... e Accountable person to appear before him on 30th Dec., 1971 and the summons were served on the accountable person on 22nd Dec., 1971. The accountable person did not respond. On 31st Dec., 1971 the Asstt. CED issued a letter requiring the accountable person to show cause why a fine should not be imposed. On 6th Jan., 1972 the authorised representative of the accountable person appeared and took time till 21st Jan., 1972. But he did not appear on 21st Jan., 1972. The Asstt. CED therefore imposed a fine of Rs. 500 under s. 79 of the ED Act. 3. The appeal No. 4 concerns the estate of Againi Swain who died on 14th Sept., 1969. Here again the accountable person was not cooperating with the Department and notices were sent to him in vain. A summ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... providing for the recovery of fine imposed in the income-tax proceedings. It was thus submitted that the orders of the Appellate Controller should be set aside and those of the Asstt. CED restored. 6. On the other hand it was contended on behalf of the accountable person that the present appeals to the Tribunal should not be entertained on the very ground that the order of the Appellate Controller were without jurisdiction. It was submitted that the appeals should be dismissed in limine without any decision on the merits of the case. It was also contended that s. 79 of the Estate Duty Act did not authorise imposition of fine in the absence of a specific provision similar to s. 131(2) of the IT Act. But no arguments were addressed on the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntroller, though admittedly without jurisdiction one in essence purporting to have been made under s. 62 as the only power of the Appellate Controller to entertain the appeals against the order of the Asstt. CED is s. 62. It has been held in the case of Mela Ram and Sons 29 ITR 607 (SC) by the Supreme Court that an appeal is no less an appeal because it is irregular or incompetent and the second appeal lies to the Tribunal against the order of the Appellate authority made in an incompetent appeal. We therefore hold that even though the appeals to the Appellate Controller were incompetent and not maintainable the appeals to the Tribunal were maintainable. 8. The next question is whether the Appellate Controller was right in holding that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he state a few instances, the following Acts have section similar to the ED Act relating to the power to enforce attendance of witnesses by reference to the CPC and without any separate provision for penalty in case of failure to comply with the summonses. Administrators General Act, 1963 (s. 48), Advocate Act, 1961 (s. 43) (also power to send summons to Court for service), Chartered Accountants Act, 1949 (s. 21(8), Commissions of Enquiry Act, 1952 (s. 4), Employees State Insurance Act, 1948 (s. 78), Employees Provident Fund Act, 1952 (s. 7A), Expenditure Tax Act, 1957 (s. 33), Foreign Exchange Regulation Act 1973 (s. 53), Industrial Disputes Act, 1947 (s. 11(3), Inter State Water Disputes Act, 1951 (s. 9), Land Acquisition Act, 1894 (s. 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see how it could fail to attract the powers to impose a fine which is enjoyed by a Civil Court and which is by reference conferred on the Asstt. CED. The phrase "enforcing attending of any person" will lose all meaning if the authority concerned should be power-less to impose a fine if the person on whom the summons is served fails to respond. We therefore hold that s. 79 empowers the Asstt. CED to impose a fine when the person on whom a summons is served fails without sufficient cause to comply with its terms. Since the Accountable persons in the two cases before us have not questioned the merits of the cases it is unnecessary for us to decide whether they deserve the imposition of fine. Therefore we set aside the order of the Appellate Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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