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TMI Blog1990 (11) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... double penalty' for a default of an assessee ? (b) Whether having passed an order in proceedings under sections 221 and 140A of the Income-tax Act, 1961, the Department is justified in law in re-initiating proceedings under section 140A for imposing penalty ? (c) Whether an Assessing Officer ceases to exercise jurisdiction and becomes functus officio after the conclusion of proceedings under the Act ? Whether an incumbent is empowered under section 129 of the Income-tax Act to issue a fresh notice and conduct further proceedings in respect of the matter dealt with by the predecessor-in-office ? (d) What is the true nature, scope and ambit of section 129 of the Income-tax Act ? Whether, under the said provisions, an incumbent is empowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch 21, 1983. Thereafter on March 22, 1983, a notice under section 221 was issued. On March 31, 1983, an order was passed by the Income-tax Officer imposing a penalty of Rs. 1,40,000. According to the said order, the same was being passed under section 221 of the Act though in the order, a reference is also made to the show-cause notice issued under section 140A. On January 22, 1985, another notice under section 140A was issued. The Officer who issued this notice was different from the one who had earlier issued the notice on March 16, 1983. Thereafter, penalty of Rs. 1,89,860 was levied under section 140A. An appeal was filed against the said order but without success. Second appeal was filed to the Income-tax Appellate Tribunal which m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel for the petitioner that it is not open to the petitioner to seek reference of those questions which had not been raised before the Tribunal. It was submitted by learned counsel for the petitioner that the questions now proposed in the application under section 256(2) are different aspects of the question which was sought to be referred in the application under section 256(1). We are unable to agree with this contention. Only one question was sought in the application under section 256(1) and curiously enough this is the only question which is not specifically mentioned or raised in the application under section 256(2). In the present petition under section 256(2), the petitioner has sought reference of as many as eight questions. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lieve in paying tax in time. It is by taking this conduct into consideration that a penalty of Rs. 1,40,000 was levied under section 221. Furthermore, there is no impediment or embargo on the Income-tax Officer issuing a fresh notice under section 140A. Reliance on section 129 is completely misplaced. That section only enables a successor-officer to continue the proceedings which have already been initiated from the stage at which they were left by the predecessor-officer. Merely because this enabling provision exists it does not mean that the successor-officer is not empowered to issue a fresh notice especially when he wants to afford the assessee an opportunity of being heard. In any case, these are the questions which are not specificall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me by the following: "The second notice was issued by the new Income-tax Officer having regard to the provisions contained in section 129 of the Act. There being change in the incumbent, it was desirable for the new Income-tax Officer to hear the assessee before deciding for or against the imposition of penalty. " It is contended by learned counsel for the petitioner that the observations as corrected show that the Tribunal held that it was desirable for the new Income-tax Officer to give a hearing to the petitioner. Learned counsel contends that no opportunity of hearing was given after the second notice. We are surprised that such a submission has been made because in the order passed by the Inspecting Assistant Commissioner imposing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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