9911796707
TMI Blog1999 (12) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Inspecting Assistant Commissioner was invalid and without jurisdiction ?" The factual position, so far as undisputed, is as follows : The assessee is an individual deriving income mainly from business in purchase and sale of "copra". The assessment for 1972-73 was completed on August 23, 1975, determining the total income of the assessee at Rs. 6,97,330. An addition on account of income from undisclosed sources was made, which, according to the Assessing Officer, represented unaccounted purchase of copra. The Assessing Officer initiated proceedings under section 271(1)(c) of the Act. As the minimum penalty leviable exceeded Rs. 25,000, the Assessing Officer referred the case to the Inspecting Assistant Commissioner of Income-tax (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at only a sum of Rs. 1,00,000 out of Rs. 1,66,456 was ultimately added and, therefore, there was concealment in respect of only Rs. 1,00,000. Considering the third item, it was held that as the amount was in the nature of an advance, it did not represent any cash credit and hence penalty was not imposable. Referring to the fourth item, the Tribunal rejected the explanation of the assessee and held that penalty was imposable. After upholding the penalty in respect of some of the additions and deleting the penalty in respect of some others, the Tribunal held that the Inspecting Assistant Commissioner did not have jurisdiction to impose penalty. For this purpose, reliance was placed on a Full Bench decision of this court in CIT v, P. I. Issac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t vested right will continue in spite of change of jurisdiction of different Tribunals or forums. This view was expressed in Ramesh Singh v. Cinta Devi, AIR 1996 SC 1560 ; [1996] 3 SCC 142. Referring to the earlier decisions in Hoosein Kasam Dada (I.) Ltd. v. State of M. P. [1953] 4 STC 114 ; [1953] AIR 1953 SC 221 ; [1953] SCR 987 ; State of Bombay v. Supreme General Films Exchange Ltd. [1960] AIR 1960 SC 980 ; [1960] 3 SCR 640 and Vitthalbhai Naranbhai Patel v. CST [1961] 12 STC 219 ; [1967] AIR 1967 SC 344, it was observed that unless the new Act expressly or by necessary implication makes the provision applicable retrospectively, the right to appeal will crystallise in the appellant on the institution of the application in the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench of this court in Issac's case [1987] 168 ITR 793, mainly followed the reasoning of the Division Bench of the Orissa High Court in CIT v. Dhadi Sahu [1976] 105 ITR 56, in support of their conclusion in preference to the view of the Division Bench of this court in the case of CIT v. Varkey Chacko [1982] 136 ITR 733. On appeal, the decision of the Orissa High Court was reversed by the apex court in the case reported in CIT v. Dhadi Sahu [1993] 199 ITR 610 and in view of that, the decision in Varkey Chacko's case [1982] 136 ITR 733 (Ker), was confirmed. The inevitable conclusion, therefore, is that the Tribunal was not justified in cancelling penalty. The residual question is whether Syed Mohamed's case [1995] 216 ITR 531 [FB], had appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e factual background, we do not think it necessary to consider the correctness of the view in Syed Mohamed's case [1995] 216 ITR 331 (Ker) [FB]. A bare perusal of the orders passed by various authorities, including the Tribunal, makes it clear that the parties proceeded on the accepted position that reference was made to the Inspecting Assistant Commissioner prior to March 31, 1976. In fact, the Tribunal's conclusion, in para. 6 reads as follows : "6. The High Court of Kerala in the case of CIT v. Issac (P. I) [1987] 168 ITR 793, delivered a Full Bench judgment on August 26, 1987 on the identical issue which is faced in the present appeal before us. In that case also, the matter was referred to the Inspecting Assistant Commissioner in 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction to levy the penalty". We have underlined' the sentence for the purpose of emphasis. Furthermore, the assessee's contention has been taken note of by the Tribunal in para. 3, which reads thus : "3. The assessee submitted that even on legal grounds, the order of penalty passed by the Inspecting Assistant Commissioner on July 26, 1979, was bad in law and has to be quashed as the order came to be passed much after the amendment made on April 1, 1976. It was pleaded that even if initiation was earlier to April 1, 1976, the Inspecting Assistant Commissioner had no jurisdiction to pass the penalty order after April 1, 1976." The underlined portion clearly shows that the assessee had taken the stand that even after the initiation pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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