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TMI Blog1995 (9) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... of Income-tax (Appeals), Guwahati. The said Commissioner heard the appeal and confirmed the imposition of penalty, vide its order dated December 21, 1989, holding that : " I am of the opinion that the penalty has correctly been levied by the Deputy Commissioner of Income-tax (Assessment), Special Range, in view of Explanations 1(A) and (B) to section 271(1)(c) and thus I confirm the imposition of penalty and dismiss the appeal of the appellant ". Subsequent to the passing of the said order by the appellate authority, the Deputy Commissioner of Income-tax (Assessment), Range-I, purportedly exercising the powers under section 154 of the Act rectified the order of penalty dated March 31, 1989, holding that there was mistake apparent from the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... educe the amount of refund granted by it under that sub-section. (1A) Where any matter has been considered and decided in any proceeding by way of appeal or revision relating to an order referred to in sub-section (1), the authority passing such order may, notwithstanding anything contained in any law for the time being in force, amend the order under that sub-section in relation to any matter other than the matter which has been so considered and decided. " On the basis of the aforesaid provisions, Dr. Saraf submits that the matter of penalty under section 271(1)(c) was fully considered and decided by the appellate authority, vide its order dated December 21, 1989, and the appeal filed by the petitioner was dismissed, holding that the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been no other ground in the appeal against the order of penalty. For instance, in the case of assessment, there may be a number of additions made in the assessment. But the assessee may object to only a few of them. In such a case with reference to the matter not touched upon by the assessee in the memorandum of appeal, the Income-tax Officer will have jurisdiction to consider and determine the question of rectification in the light of section 154(1A) of the Act. But in the case of penalty, there is no possibility of any other ground being left out of consideration by the assessee in the memorandum of appeal especially where the assessee objects to the levy of penalty. What the Income-tax Officer has virtually done by the order under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other relating to furnishing of inaccurate particulars of such income. The offence relating to one part does not preclude the Department to proceed for other offence being committed regarding the other part. The High Court held that there were two charges and the exclusion of one of the charges does not mean that the other charge is also excluded. The Calcutta High Court in that decision held that the appellate authority could go into both the matters and uphold or vary the imposition under section 271(1)(c) of the Act. In my opinion, the said case does not help the Department ; on the contrary, it goes against the Department. According to the Calcutta High Court, all the charges under section 271(1)(c) could be decided by the appellate au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of that section only. In the present case, the authorities have imposed penalty on the assessee and the assessee had gone in appeal before the appellate authority and the appellate authority has considered all the aspects of the matter or should be taken to have considered all the aspects of the matter and found penalty imposed was rightly and correctly imposed. According to me, the appellate authority under the provisions of section 251(1)(b), had the power to alter or amend or even to enhance or reduce the penalty and deal with other aspects of the same matter, i.e., the imposition of penalty as it would find it proper. The language of section 154(1)(a) makes it abundantly clear that the matter which is considered or decided ..... X X X X Extracts X X X X X X X X Extracts X X X X
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