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TMI Blog2018 (9) TMI 1470X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout passing any final order if the amount of income in respect of which the particulars have been concealed did not exceed ₹ 25,000/-. The previous operation of Section 274(2) as it stood before 01.04.1971, and anything done thereunder continued to have effect under Section 6(b) of the General Clauses Act, 1897, enabling the Inspecting Assistant Commissioner to pass orders imposing penalty in pending references. Therefore, the Inspecting Assistant Commissioner to whom the case was referred prior to 01.04.1971 had jurisdiction to impose the penalty. Sub-Divisional Officer was empowered to initiate proceedings for illegal extraction of minerals under the provisions of Section 247(7) of the Code and the order which was impugned in the writ petition was passed by the Sub-Divisional Officer after amendment under Rule 53 of the Rules of 1996, which came into force w.e.f. 18.05.2017. Appeal dismissed. - R. P. No.595 of 2018, R. P. No.597 of 2018, R. P. No.599 of 2018 And R. P. No.600 of 2018 - - - Dated:- 9-8-2018 - Shri Justice P.K. Jaiswal And Shri Justice Virender Singh, JJ. For the Petitioner : Shri Piyush Mathur, learned Senior Counsel with Shri Akash Vijayvargiya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand in the matter of procedural only because no person has a vested right in any course or procedure. He has only the right of defence in the manner prescribed for time being by or for the authority, which the case is pending and, if, by amendment the mode of procedural is altered, he has no other right then to proceeding according to the altered mode. A change of forum (from the court of Collector to Sub-Divisional Officer) is a Writ Petition No.1313/2018 connected matter of procedure and, therefore, if an amended Rules requires or give authority to Sub-Divisional Officer instead of Collector, the said authority is competent to consider the question and decide it in accordance with law. 21. For the above mentioned reasons, we are of the view that the Sub-Divisional Officer is competent to pass the impugned order, but he has acted illegally and the penalty has been imposed on the basis of amended Rule 53 of Rules of 1996, treated it to have retrospective operation and, therefore, we quash that part of the order and remit the matter back to the learned Sub-Divisional Officer to reconsider the same and decide the question of imposition of penalty as per the Rules, which was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the particulars have been concealed did not exceed ₹ 25,000. This supports the inference that in pending references the Inspecting Assistant Commissioner continued to have jurisdiction to impose penalty. The previous operation of Section 274(2) as it stood before April 1, 1971, and anything done thereunder continued to have effect under Section 6(b) of the General Clauses Act, 1897, enabling the Inspecting Assistant Commissioner to pass orders imposing penalty in pending references. In our opinion, therefore, what is material to be seen is as to when the references were initiated. If the reference was made before April 1, 1971, it would be governed by Section 274(2) as it stood before that date and Inspecting Assistant Commissioner would have jurisdiction to pass the order of penalty. 21. It is also true that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eview petitions be modified accordingly. 6. Per contra, Shri Vivek Patwa, learned Government Advocate has submitted that the amended provisions of Rule 53 of the Rules of 1996 would apply in the case in hand in the matter of procedure. The petitioner has the vested right of defence in the manner prescribed for time being by or for the authority and he has no other right than to proceedings according to the altered mode. By impugned order, learned Writ Court quashed the order impugned therein and remitted the matter back to the Sub-Divisional Officer for reconsideration and decide the question of imposition of penalty as per the rules which was prevailing on the date of joint inspection. He further submitted that earlier, prior to amendment, the Collector was empowered to pass the order in a proceeding under Rule 53 of the Rules of 1996 but after amendment made on 18.05.2017, power has been delegated to number of other authorities (not in below the rant of Deputy Collector), as mentioned therein and, thus the Sub-Divisional Officer is competent to decide the matter afresh. He further submitted that at that relevant point of time, period of lease of the petitioner had expired an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 274(4) of the Act of 1961. On 28.02.1970 i.e., on the date of the assessment orders, Section 274(2) of the Act of 1961 provided as follows :- Notwithstanding anything contained in clause (iii) of sub- section (1) of Section 271 if in a case falling under clause (c) of that sub-section the minimum penalty impossible exceeds a sum of Rupees one thousand, the Income Tax Officer shall refer the case to the Inspecting Assistant Commissioner, who shall, for the purpose, have all the powers conferred under this chapter for the imposition of penalty. 9. From the aforesaid, it is clear that till 01.04.1997, the Income Tax Officer had no jurisdiction to impose penalty, under Section 271(1)(c) of the Act if the minimum penalty impassable exceeded ₹ 1,000/- and in such a case he was bound to make a reference to the Inspecting Assistant Commissioner, who, on such reference exercise all the powers conferred under Chapter XXI for the imposition of penalty. From 01.04.1971, the Income Tax Officer could impose penalty under Section 271 (1)(c) if the amount of income in respect of which the particulars were concealed or inaccurate particulars were furnished did not exceed &# ..... X X X X Extracts X X X X X X X X Extracts X X X X
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