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TMI Blog1984 (3) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee challenged these orders of penalty before the Additional Deputy Commissioner of Commercial Taxes (Appeals), Mangalore Division, Mangalore. The assessee contended before the Dy. Commr. that: (i) the penalties levied under sections 42(1) and 42(2) of the Act without hearing the assessee were bad in law and should, therefore, be set aside ; (ii) that no penalty on super-tax can be levied under the Act; and (iii) that the penalty imposed without exercising the discretion under section 42(1) and without considering the reasons put forward by the assessee for the default in payment of tax, like financial difficulties etc., should be set aside as not sustainable in law. The Deputy Commissioner upheld the penalties of Rs. 21,000 and Rs. 51,000 levied under s. 42(1) for the two years 1967-68 and 1968-69 respectively. The Deputy Commissioner, however, reduced the penalties levied under s. 42(2) to Rs. 40,814.25 equivalent to 1/8th of the tax due for that year in accordance with the provisions of s. 42(1). The assessee preferred further appeals before the Appellate Tribunal reiterating the above contentions. The Appellate Tribunal which heard the appeals se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondingly does not have the power to remand; and (iii) that there is no provision under the Act to levy penalty for default to pay the super-tax and the penalty levied on super-tax is, therefore, without authority of law. We shall take up the last contention first for consideration. " Super , tax" is defined under s. 2(vv) as a tax payable under s. 53A. Such a tax is levied under s. 53A of the Act in addition to the agricultural incometax payable under s. 3 of the Act. Under the scheme of Chapter V of the Act dealing with the provisions for recovery of tax and penalties, an assessee who is in default in making payment of agricultural income-tax, will be liable to pay, in addition to the amount of arrears, a sum not exceeding 1/8th of the amount, by way of penalty under s. 42(1). " Agricultural income-tax " is defined under s. 2(b) of the Act as the tax payable under s. 3, the charging section. What is charged under s. 3 is the tax exigible under the Act and levied at the rates specified in Part of the Schedule. " Super-tax " which is charged under s. 53A is apparently not a tax payable under s. 3. An assessee who is in default in paying the tax levied under s. 3 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds 'pass such orders as the Tribunal thinks fit' include all the powers (except possibly the power of enhancement) which are conferred upon the Appellate Assistant Commissioner by section 31 of the Act". Section 33(4) of the Indian I.T. Act, 1922, is analogous to section 34(4) of the Agrl. I.T. Act, 1957. The words " pass such orders thereon as it thinks fit " in s. 34(4) of the Act must, therefore, receive the same meaning as given by the Supreme Court in the two cases above referred to. That being so, the power of the Appellate Tribunal under s. 34(4) of the Agrl. I.T. Act is also circumscribed and is similar to the power conferred on the Deputy Commissioner under the Act. It means that if an order of the Deputy Commissioner is the subject-matter of an appeal before the Appellate Tribunal, then the Tribunal has the same powers which the Deputy Commissioner has, while disposing of an appeal under the Act and its power is co-extensive with the power of the Deputy Commissioner in appeal. The word " thereon " found in s. 34(4) of the Act has been used to restrict the jurisdiction of the Appellate Tribunal to the subject-matter of the appeal and the words " pass such orders ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29, 30 and 42. In other words, the provisions of s. 32(1) expressly make a distinction between an 'assessment' and an 'order'. An order of assessment under the Act is made only under s. 19. 'Order' referred to under sub-s. (1) of s. 32 must, therefore, necessarily be an order contemplated under any of the provisions of ss. 22, 26, 29, 30 and 42. Section 22 provides for levy of penalty for concealment of income if it is found by the assessing authority in the course of the assessment proceedings that the assessee has concealed the particulars of income. Section 26 provides the procedure to assess the income under the Act in case of a discontinued company, firm or association, It also provides for levy of penalty for non-intimation of the discontinuance of such company, firm or association to the assessing officer. Section 29 provides for registration of firms. Section 30 provides for determination of the claim of partition or maintenance division of the property among the various members or groups of the HUF or branch, etc. Then we come to s. 42 which provides for levying penalty for default in payment of tax payable under the Act. Sri Rajendra Babu, learned Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty " in the said proviso. The Deputy Commissioner, in the case of an appeal against an order of assessment, may confirm, reduce, enhance or annul the assessment or set aside the assessment with a direction to the Agrl. ITO to make a fresh assessment. But, in regard to an appeal against any other order, cl. (b) is not as comprehensive or as wide as cl. (a) and the Deputy Commissioner could only confirm, cancel or vary such order. It does not confer power on him to direct the AITO to make a fresh order in any of the cases falling under cl. (b) of s. 32(5). Since the appeals before the Deputy Commissioner in the instant cases were preferred against the orders of penalty, they fall under cl. (b) and the Deputy Commissioner could only confirm, cancel or vary such order and he has no power to remit the matter to the assessing authority for reconsideration. If the Deputy Commissioner has no power to set aside and remand a matter relating to penalty, it follows that it would be beyond the powers of the Tribunal also to remand the matter to the assessing authority to reconsider and make a fresh order since we have earlier observed that the powers of the Tribunal are just the same ..... X X X X Extracts X X X X X X X X Extracts X X X X
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