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TMI Blog1984 (10) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... account of addition of Rs. 50,900 was made was on 20th Aug., 1971. In the assessment order it had been mentioned penalty proceedings under s. 271(1)(c) are being initiated separately. Reference was also made on 19th Aug., 1973 to the IAC. In the final assessment made on 11th March, 1982, it was again mentioned that penalty proceedings under s. 271(1)(c) are being initiated separately. On the same day of the passing of the order, the ITO made a reference to the IAC and sent a notice to the assessee to send all replies to the IAC and that all penalty proceedings shall henceforth take place before the IAC. The IAC vide his order dt. 7th June, 1982 had levied the penalty of Rs. 50,900 which included Rs. 16,100 the addition that was confirmed by the Tribunal vide its order dt. 29th Nov., 1975 and another sum of Rs. 34,800 added as income by ITO vide his order dt. 11th March, 1982. 4. Mr. Ranka submitted that in the present appeal issues on the legality of the levy of penalty as well as quantum has been raised. According to Mr. Ranka, the penalty order by the IAC is without any jurisdiction as due to the amended law it was only the ITO who was empowered to levy the penalty after 1st Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... once the law maker changes the law, any action done after the amendment must be in accordance with the law in force then. Since as per the changed law after 1st April, 1976, the IAC has been divested of the powers of imposition of penalty he could not have imposed the penalty at all and, therefore, the order of penalty by IAC is without any jurisdiction, and needs only to be quashed. 6. (i) Mr. Ruhela, the ld. departmental representative submitted that the penalty order must be read as a whole. It had been passed giving effect to following the directives of the Tribunal s order; (ii) Mention in the order re: initiation of penalty is indicative of the fact that issue of penalty was alive; and (iii) Reference was made to IAC on 19th Aug., 1973 and once the IAC assumes jurisdiction on an issue, he continues to enjoy the jurisdiction and no amendment could take away his powers. For this proposition he relied on cases in Rattan Chand Krishan Lal vs. CIT (1984) 43 CTR (P H) 219 : (1984) 148 ITR 597 (P H), CIT vs. Daropdi Devi (1984) 149 ITR 178 (Del), CIT vs. A.N. Tiwari (1980) 15 CTR (MP) 142 : (1980) 124 ITR 680 (MP), CIT vs. Mela Raj Jagdish Raj Co. (1980) 18 CTR (P H) 218 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eted." 6.4 From the reading of the section, there are two courses open for levy of penalty. The first being to levy the penalty by 31st March, 1974, i.e., two years from the end of the financial year, 31st March, 1972, i.e., the assessment was completed on 20th Aug., 1971. Penalty was perhaps not imposed by 31st March, 1974 as the department desired to wait till the disposal of the appeal by the Tribunal. Since the time-limit expired as per the first course of action, penalty could only be levied by the second available course. As per the second proviso, penalty could be levied by 30th June, 1976 only as the order of the Tribunal dt. 29th Nov. 1975 was received by the CIT s office on 12th Dec., 1975. The argument of the Department that since the order of the Tribunal was given effect to only vide order dt. 11th March, 1982, penalty could only be levied after March, 1982 is not at all well founded. The reason being, the addition of Rs. 15,100 made by the ITO was confirmed by the Tribunal vide its order dt. 29th Nov., 1975. To this extent the order of the ITO has culminated to a finality. The penalty could, therefore, be levied only by 30th June, 1976. Therefore, it has to be held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly so said by the Supreme Court in Union of India vs. Sukumar AIR 1966 SC 1206. Their Lordships observed that "a person accused of the commission of an offence has no vested right to be tried by a particular Court or particular procedure, except in so far as there is any constitutional objection by way of discrimination or the violation of any other fundamental right is involved." 7.3 The department s contention that the amendment to the statute by deletion of s. 274(2) cannot deprive of the jurisdiction already conferred on IAC when he had initiated the proceedings is ill-founded. There is no denial of the fact that when reference was made to him on 19th Aug., 1973, he had the jurisdiction which he normally could have exercised. But he cannot definitely say that powers once conferred on him cannot be withdrawn. He thus cannot say that he could have done before the amendment, even though, carried out by him afterwards would be legally valid. This is further emphasised by the statute itself which has allowed him power of granting or refusing of approval on the penalty matter referred to him. 7.4 An identical issue came up for consideration before their Lordships of Rajasthan Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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