9911796707
TMI Blog1996 (4) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... /24, 1974. The assessee thereafter on June 9, 1978, preferred appeals against the imposition of penalty before the Appellate Assistant Commissioner. The Appellate Assistant Commissioner, by his order dated October 29, 1979, rejected the appeals as not maintainable. The second appeal was preferred before the Income-tax Appellate Tribunal. By order dated January 20, 1981, the Tribunal following the decision of the Karnataka High Court in CUT v. B. Kempanna [1980] 126 ITR 825 held that the appeals were maintainable before the Appellate Assistant Commissioner. Since there had been no decision on the merits by the appellate authority, the appeals were remanded to the Appellate Assistant Commissioner. Later, on the application by the Department, the Tribunal referred the following question of law for opinion of this court : " Whether, on the facts and in the circumstances of the case, the Appellate Tribunal misdirected itself in holding that even after the rejection of the assessee's petition under section 18(2A) by the Commissioner of Wealth-tax the appeals filed by the assessee before the Appellate Assistant Commissioner are maintainable ? " A period of fifteen years having gone by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sharan, relied on Smt. Ichhabai Panchal v. CWT [1982] 137 ITR 232 (Cal) in support of the stand about non-maintainability of appeal. The Andhra Pradesh High Court, apart from the Karnataka High Court in B. Kempanna's case [1980] 126 ITR 825 referred to above, has taken the contrary view in CWT v. Lt. Co. Mirza Mahmood Ali Baig [1985] 152 ITR 740. We have examined the aforesaid decisions and we are inclined to agree with the view taken by the Karnataka High Court and the Andhra Pradesh High Court in the aforesaid cases. It would be appropriate at this stage to notice the scheme of the Act so far as relevant for the purpose of this case. Section 14 provides for filing of returns. Section 16 provides for assessment. Section 18 provides for imposition of penalty for failure to furnish returns or to comply with notice (asking the assessee to file returns) and concealment of assets. Sub-section (1) of this section as it stood during the relevant period up to March, 1976, was in these terms : "(1) If the Wealth-tax Officer, Appellate Assistant Commissioner, Commissioner or Appellate Tribunal in the course of any proceedings under this Act is satisfied that any person-- (a) has with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The argument that the appeal against the order of imposition of penalty after rejection of the application under section 18(2A) of the Act is not maintainable, rests on the provision as contained in section 18(2B). But as is apparent from a plain reading of the provision, it only provides that the order of the Commissioner under section 18(2A) shall be final and shall not be called in question before any court of law or any other authority. In the appeals which the assessee preferred in the instant case against the imposition of penalty under section 18(1), the order of the Commissioner was not under challenge. And it could not be, as is clear from a bare reading of section 18(2A), the Commissioner can merely reduce or waive the amount of minimum penalty imposable on a person subject to fulfilment of the conditions specified in that sub-section. Whereas the power of the appellate authorities to confirm or reduce the penalty levied under section 18(1) is unconnected with the said requirement or conditions as specified under section 18(2A). Section 23(1)(d) confers a statutory right upon an assessee to prefer appeal before the Appellate Assistant Commissioner objecting to any pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 27 and only there after take resort to the powers of the Commissioner under section 18(2A). But it does not mean that where an impatient assessee instead of going in for usual remedies of appeal, etc., straightaway moves the Commissioner under section 18(2A), his statutory rights are lost. There may be various reasons and considerations weighing with the assessee for making application under section 18(2A). He may not like to go in for the time consuming process which the appeals, etc., are bound to take and, therefore, to buy peace of mind and for expeditious disposal of the matter, he may like to go in for waiver/reduction. The analogy of a plaintiff/defendant of a civil suit going in for a compromise, agreeing to forgo some of his rights and claims may clarify the point. It is well-settled that merely because the plaintiff/defendant of any civil suit agrees to forgo his rights and claim in the suit that does not stand against him where the compromise is not ultimately accepted and he is compelled to contest the suit. He forgoes part of his claim in consideration of getting something in lieu thereof. After the compromise fails for any reason he is not debarred from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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