9911796707
TMI Blog1978 (9) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... ome on 31st July, 1965 declaring a total income of Rs. 71,422. Subsequently, it filed a revised return on2nd Feb., 1970declaring a total income of Rs. 74,693. The ITO completed its assessment on26th March, 1970on a total income of Rs. 74,693. The ITO completed its assessment on26th March, 1970on a total income of Rs. 1,29,840. He made an addition of Rs. 52,763 which was objected to by the assessee by filing an appeal to the AAC. By his order dt.26th Aug., 1970, the AAC set aside the assessment and directed the ITO to make a fresh assessment in the light of certain observations in his order. Pursuant to this order, the ITO to make a fresh assessment on30th March, 1971determining the total income of the assessee at Rs. 2,13,137. The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CIT (Orissa) (3), CIT Central Delhi, vs. M/s. Om Sons (4). He further fairly stated that the only decision that was against him and in favour of the Revenue is the decision of the Madras High Court in Continental Commercial Corporation vs. ITO. (5). 5. Shri Mehra also argued that there was no concealment of income by the appellant to justify the imposition of the penalty. He contended that the appellant had discharged its burden of proof to rebut the presumption raised by the explanation under s. 271 (1)(c) of the Act. He further pleaded that if a penalty is leviable on the facts of the present case, such penalty could be levied only with reference to the tax sought to have been avoided as the assessee had filed its return of income on 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of the view that the assessee is entitled to succeed on the legal issue raised by it in regard to the jurisdiction of the IAC to levy the penalty in question. s. 274(2) of the IT Act, 1961, under which the IAC has levied the penalty stood as follows before its deletion by the taxation laws (Amendment) Act, 1975 w.e.f. 1st day of April, 1976. "(2) Notwithstanding anything contained in cl. (iii) of sub-sec (i) of sec. 271, if in a case falling under cl. (c) of that sub-s. the amount of income (as determined by the ITO on assessment) in respect of which the particulars have been concealed or inaccurate particulars have been furnished exceeds a sum of twenty five thousand rupees, the ITO shall refer the case to the IAC who shall, for the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Allahabad High Court itself in Kallkhan vs. Kamrul Nisa (6). Their Lordships, therefore, held that on29th Jan., 1971, when the IAC passed final order imposing penalty, his jurisdiction to do so had been taken by the amendment in s. 274(2) of the Act and that, therefore, the order passed by him was without jurisdiction. 10. No doubt the decisions of the Madras High Court in the case of Continental Commercial Corpn (5), is in favour of the Revenue. 11. In view of the divergence of opinion among the various High Courts, we would prefer with respect to follow the above mentioned decisions of the Orissa and Allahabad High Courts and hold that the penalty order passed on 30th Nov., 1976 by the IAC was without jurisdiction and hence illegal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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