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TMI Blog1982 (1) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... h orders at this stage if the matter was remanded to him and, therefore, in not remanding the matter to the ITO for passing fresh orders u/s. 271(1)(c) in accordance with the provision of law ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the penalty order passed u/s. 28 altogether, especially when the provisions of s. 28(1)(c) of the Act of 1922 are in pari materia with the provisions of s. 271 (1)(c) of the I.T. Act, 1961, and deal with the same subject-matter and the completion of the proceedings under the Act of 1922 could be attributed to the jurisdiction vested under the Income-tax Act, 1961 ? " The material facts giving rise to this reference briefly are as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by s. 275 of the I.T. Act, 1961. In this view of the matter, the Tribunal allowed the appeal preferred by the assessee and set aside the order of penalty imposed by the ITO. Aggrieved by that order, the Department sought a reference and it is at the instance of the Department that the aforesaid questions of law have been referred to us for our opinion. The main question that arises for consideration is whether the Tribunal was right in holding that the proceedings for penalty should have been initiated under the provisions of the I.T. Act, 1961, and not under the provisions of the Indian I.T. Act, 1922. In the instant case, the order of assessment, on remand, was passed by the ITO on 22nd November, 1972, and on that date, he had issued a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. Act, 1961. Now, the Tribunal did not remand the case to the ITO because of the limitation prescribed by s. 275 of the Act. The Tribunal, however, did not consider whether the ITO had jurisdiction to issue notice under s. 271(1)(c) of the Act in view of the provisions of s. 274(2) of the I.T. Act, 1961, as they stood on 22nd November, 1972. It was not disputed before us that under those provisions, the IAC and not the ITO had jurisdiction to issue a notice and impose penalty as the provisions of s. 274(2) of that Act were attracted, in the circumstances of the case. Thus, the ITO had no jurisdiction on 22nd November, 1972, to proceed to impose penalty on the assessee by issuing a show-cause notice and the penalty proceedings were vitiated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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