9911796707
TMI Blog1936 (1) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... ned it below its real amount? 2. Commissioner's Second Question. Is the maximum penalty admissible under Section 28 restricted in law otherwise than by the difference between the income tax upon the total income actually returned and that upon the total income actually assessed? 3. (a) Assessee's First Question. Whether in a case held as validly decided under Section 23(4) by an Assistant Commissioner of Income tax, is he lawfully competent to impose any penalty under Section 28(1) of the Income Tax Act? (b) Assessee's Second Question. Whether in the circumstances of the case there were any proceedings before the Assistant Commissioner of Income Tax within the meaning of Section 28(1) of the Act. (c) Assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23(4) in order to deprive the assessee of his right to appeal. The Assistant Commissioner in his order dated the 18th of April, 1934, came to the conclusion that the registers in question had been deliberately withheld and that in view of these facts the assessment made by the Income Tax Officer under Section 23(4) was valid, and that the order of the Income Tax Officer was consequently not appealable. The order of the Assistant Commissioner concludes with the following words:- The present appeal is therefore, not admitted. The other objections relate to the merits of the case and so need no discussion. I also find that the appellant returned no income from the Bardana (Gunny Bags) Khata, although it has been found by the Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g taken. In spite of this observation, however, the Income Tax Officer took no action on the 31st of January 1934 or at any time thereafter by issuing a notice to the assessee under Section 28 of the Income Tax Act. According to the Commissioner, the case was submitted to the Assistant Commissioner by the Income Tax Officer on the 14th of March 1934, recommending prosecution but no action appears to have been taken on that recommendation. It was contended by the learned counsel for the assessee that the Assistant Commissioner became functus officio as soon as he passed order, on the 18th of April 1934, to the effect that the assessment under Section 23 was valid and that the order of the Income tax Officer was not appealable. The Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. Section 32 deals with appeals preferred to the Commissioner against certain orders of the Assistant Commissioner. In the present case the assessee appealed to the Commissioner urging that the imposition of the penalty by the Assistant Commissioner was illegal as the concealment of income, if any, did not come to his notice during the course of any proceedings before him. The Commissioner in deciding whether the imposition of the penalty by the Assistant Commissioner was illegal could not, in our opinion, re-impose the penalty himself, and thereby validate the very order which was challenged in appeal before him. For the same reason the Commissinor was precluded from imposing the penalty when an application was preferred to him under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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