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TMI Blog2013 (12) TMI 1463X X X X Extracts X X X X X X X X Extracts X X X X ..... to the petitioners would then become aware that the verdict has gone against it and would then be posed with the possibility of a penalty being imposed. It is in this situation that the hearing on the penalty is necessary. Analogy from the M/s. Guduthur Bros. (1960 (7) TMI 5 - SUPREME Court) ruling establishes that though issuance of notice before imposing penalty had not been expressly provided for under the Income-tax Act, 1922, opportunity of hearing before imposing penalty pre-supposes a proper hearing. Such a hearing can be made possible by issuing notice of hearing on penalty. Thus the concerned party is called upon to show cause as to why penalty should not be imposed. To achieve this object, which appears to be the intention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g) (h) public authority means any authority or body or institution of self-government established or constituted - (a) to (c) (d) by notification issued or order made by the appropriate Government, and includes any - (i) body owned, controlled or substantially financed. 5. The learned Advocate submits that though on the one hand the petitioners have appointed an Information Officer and have also created an appellate authority, they still would not be covered by the Right to Information Act since there is no State funding by which it could be covered under the definition under Section 2(h)(i). On the other hand, having supplied information to the best of its ability and having heard the appeal of the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntentious issue between the parties open for the lower authority to decide. The parties may agitate this issue before the State Information Commission. 7. Shri Sangit has then drawn my attention to the first proviso to Section 20(1), which reads as under :- Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him. According to him, opportunity of being heard before any penalty was imposed, was not given to the petitioners. 8. Shri Sawant, the learned Advocate for respondent No. 1 submits that the petitioners have misconstrued the meaning and import of the proviso. According to him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead to a pre-supposition that the authority first has to come to a conclusion on the appeal and in the event the appeal is allowed, then thereafter the question of penalty would arise. In my view, the proviso gives the losing parties a right to a notice and hearing as regards imposition of penalty after the verdict of the appeal is handed down. It is only thereafter that a party similar to the petitioners would then become aware that the verdict has gone against it and would then be posed with the possibility of a penalty being imposed. It is in this situation that the hearing on the penalty is necessary. 11. From the impugned order it does not appear that the State Information Commission had put the petitioners to notice about the penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings, but during the course of it. The order of the learned Appellate Assistant Commissioner pointed out the ground on which the illegality proceeded and his order directing the refund of the penalty, if recovered, cannot but be interpreted as correcting the error and leaving it open to the Income-tax Officer to continue his proceedings from the stage at which the illegality occurred. No express remand for this purpose, as is contended was necessary. (5) In our opinion, the notice issued to the appellants to show cause why penalty should not be imposed on them did not cease to be operative, because the Appellate Assistant Commissioner pointed out an illegality which vitiated the proceeding after it was lawfully initiated. That notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 2(h)(i) and the applicability of the Right to Information Act, 2005. (d) In the event the appeal of the respondent is allowed and if the State Information Commission desires to impose penalty, Section 20(1) and the first proviso thereunder shall be given effect to by issuing a show cause notice on penalty to the petitioners herein and after causing a hearing, would be at liberty to pass an order on its own merits. (e) All contentions raised by the respective parties in this petition as well as in the appeal before the State Information Commission are kept open. (f) Both the parties agree to appear before the State Information Commission Bench at Nashik on 13th January, 2014, at 11.00 a.m. (g) Both the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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