9911796707
TMI Blog1982 (3) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... . At the time of passing the consequential order in order to give effect to the above said orders, the WTO noticed that there was a mistake, in calculation of the penalties levied in the orders passed under section 18(1)(a) on 30-3-1976. According to the WTO, for the assessment year 1969-70 for the delay of 41 months the penalty worked out to Rs. 2,993 as against Rs. 380 levied by him. Similarly, according to the reduced periods of delay by the AAC, as stated above, the correct penalties leviable worked out to Rs. 1,103, Rs. 2,192 and Rs. 740 for the assessment years 1970-71, 1971-72 and 1972-73, respectively. 2. Since according to the WTO, there was a mistake apparent from the records in calculating the penalties, he initiated action under section 35 of the Wealth-tax Act, 1957 ("the Act"), for all these four years. The assessee in the explanation filed on 8-11-1977 stated that there was no justification for the WTO to revise the penalties. It was further stated that even if a minimum penalty is warranted, the authorities competent to impose the penalty would be justified in refusing to impose a penalty when there was a technical or venial breach of the provisions of the Act, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Income-tax Act. It was further contended that if at all an increase in penalties as originally levied was to be made, the power to enhancement was vested with the AAC under section 23(5) and he could and should have done the same, if there was really a mistake calling for rectification, when he heard the appeals against the orders imposing penalty and he having not done so, it was not open to the WTO when implementing the appellate order to enhance the penalties by having resort to the provisions of section 35. In support of his contention, the learned counsel relied upon a decision of the Madras High Court in the case of CIT v. Indian Auto Stores [1981] 129 ITR 554. It was further contended that once a ground was taken up in appeal before him, the silence of the AAC on that particular point meant that he had confirmed the order of the WTO on that point and, therefore, the operative order was that of the AAC and the WTO had no jurisdiction to pass the order of rectification. In support of this contention, the decision of the Delhi High Court in the case of Rohtak Hissar Districts Electric Supply Co. (P.) Ltd. v. CIT [1981] 128 ITR 52 was brought to our notice. It was further co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to under the law. To what extent, if at all, the petitioner was entitled to such relief and rebate the Appellate Assistant Commissioner had not directed. While passing the order in consequence of the Appellate Assistant Commissioner's direction, if the Income-tax Officer acts erroneously or contrary to the provisions of law, it could not be said that the same formed part of the order of the Appellate Assistant Commissioner as it was an independent order and was, therefore, subject to the revisional power of the Commissioner." Finally the learned departmental representative contended that apart from case law, section 35(8) expressly provided for rectification by the WTO of matters which had not been the subject-matter of appeal to the AAC. 6. We have heard the rival submissions made by the parties. For the assessment year 1969-70 the valuation date was 31-3-1969. The due date for filing the return was 31-7-1969 and actually it was filed on 7-12-1972. Hence, there was a delay of 41 months. The wealth returned by the assessee for this assessment year was Rs. 93,135 while the wealth assessed was Rs. 1,49,155. Originally for a delay of 41 months the penalty levied under section 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the penalties, he passed orders under section 35 by levying enhanced penalties for the periods determined by the AAC. 11. The point to be considered at this stage is whether the quantum of penalty is one which had been considered and decided by the AAC. The order of the AAC clearly showed that he has considered the explanation offered by the assessee and ultimately came to conclusion confirming the penalty levied for the assessment year 1969-70, while reducing the periods of default for the rest of the assessment years. Though he had power of enhancement he did not exercise such power in this case. The learned departmental representative contended that there is no merger in this case because there is nothing to show that the AAC had considered and decided the question of quantum of penalty. We have shown in the present case that the quantum of penalty was involved in the appeals for the assessee's contention was that no penalty should be imposed. The AAC should, therefore, have also examined the arithmetical computation of quantum of penalty himself in deciding the appeal. Therefore, in the present case, the entire order of the WTO levying penalty had merged in the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
