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TMI Blog1986 (8) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... hich had not been shown in his return. The assessee initially disputed that he had such an account, but later the assessee admitted that the account belonged to him. On the facts found as aforesaid, the Income-tax Officer initiated proceedings for penalty against the assessee by a notice dated February 23, 1973, issued under section 274 of the Income-tax Act, 1961, read with section 271 thereof. The assessment was completed on March 16, 1973. In the total income, a sum of Rs. 6,000 and a sum of Rs. 2 were added, respectively, on account of the truck and the said savings bank account. The said additions have been sustained on appeals preferred by the assessee. The date of hearing of the penalty proceeding was fixed on September 28, 1973. The assessee did not appear at the hearing. Thereafter, reminder dated February 25, 1974, was issued to the assessee fixing the hearing of the case on March 4, 1974. The reminder was received by the assessee but he did not appear at the hearing. A further reminder was issued on June 20, 1974, fixing the hearing of the case on July 3, 1974. This time the assessee refused to accept the service of the reminder. Thereafter, a third reminder dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax Officer and he had imposed penalty on the basis of an estimated income. It was further contended that in spite of demand by the assessee for an opportunity of being heard by the assessee's letter dated November 24, 1974, no such opportunity was given to which the assessee was entitled under section 129 of the Income-tax Act, 1961, and, as such, the order imposing penalty was improper being in contravention of the principles of natural justice. The Appellate Assistant Commissioner rejected the contentions of the assessee and confirmed the penalty. There was a further appeal by the assessee before the Income-tax Appellate Tribunal. It was contended on behalf of the assessee before the Tribunal that the income which was added to the total income of the assessee in respect of the truck was estimated at Rs. 6,000 and on further appeal, the addition had been reduced to Rs. 5,000. It was contended further that the basis of the penalty being concealment of an estimated income, the penalty could not be justified. It was also contended that the order of penalty was passed without giving the assessee an opportunity of being heard in spite of his letter dated November 20, 1974, deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Direct Taxes (Amendment) Act, 1970, and in that view holding that the Income-tax Officer was competent to impose penalty ? (3) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in confirming the imposition of penalty under section 271(1)(c) of the Income-tax Act, 1961 ? " From the facts as found, it appears that several dates of hearing of the penalty proceeding had been fixed since September 28, 1975, but the same were not effective inasmuch as the assessee either did not attend the hearing or applied for adjournment. The last of such adjournments appears to have been granted on the application of the assessee when the hearing, which was fixed on July 22, 1974, was adjourned. It is not found that any further or other date of hearing was fixed or that the assessee was given notice of any subsequent date of hearing. It is also on record that thereafter the assessee's income-tax file was transferred successively from one Income-tax Officer to another. Ultimately, the Income-tax Officer, Central Circle, Calcutta-XVIII, imposed the penalty on February 17, 1975. The assessee specifically applied for a rehearing by his letter d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed exceeds a SUM Of twenty-five thousand rupees, 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. (3) An Appellate Assistant Commissioner, on making an order under this Chapter imposing a penalty, shall forthwith send a copy of the same to the Income-tax Officer." It was argued on behalf of the assessee before us that the law applicable would be the law which was in force at the time of filing of the return and, therefore, it was the Inspecting Assistant Commissioner and not the Income-tax Officer who had jurisdiction to impose the penalty when it exceeded Rs. 1,000. In support of his contention, learned advocate for the assessee cited: (a) Continental Commercial Corporation v. ITO [1975] 100 ITR 170 (Mad), (b) CIT v. Royal Motor Car Co. [1977] 107 ITR 753 (Guj), and (c) Brijmohan v. CIT [1979] 120 ITR I (SC). In Continental Commercial Corporation's case [1975] 100 ITR 170, on almost identical facts, the Madras High Court held that when the return was filed prior to April 1, 1971, the jurisdiction of the officer imposing the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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