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TMI Blog2016 (3) TMI 1439X X X X Extracts X X X X X X X X Extracts X X X X ..... d are that the respondent-assessee furnished return of income declaring total income of Rs.61,800/- on 30.10.1998, however, the assessment was completed on a total income of Rs.1,00,31,240/-. Thereafter proceedings u/sec. 263 were initiated by the Commissioner of Income Tax (Admn.), and finding that the claim of depreciation was wrongly allowed so also other expenses by the Assessing Officer on Tractor, Jeep, Ring Machine, Dumper, Road Roller etc. @ 40% as against 25% and the other issues, the original assessment was set aside. It was noticed by the Assessing Officer that after the order passed by the Tribunal on merits pursuant to order passed u/sec. 263 by the AO, the income has been substantially enhanced to what was declared by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the assessee has deliberately furnished inaccurate particulars of income or has wrongly claimed the expenses which were not in accordance with the provisions of the Act. However, the CIT(A) sustained penalty leviable only on the commission income of Rs.19,93,474/-, and directed to levy minimum penalty of the tax sought to be evaded on the concealed income on Rs.19,93,474/-. 5. Both the AO as well as the respondent-assessee preferred appeals before the Tribunal. 6. Before the Tribunal for the first time the assessee raised a legal ground as ground no.1(b) on the premise that the penalty order is required to be treated as void ab initio for the reason that the AO has not obtained requisite prior approval of Joint Commissioner before pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel for the Revenue at the outset contended that the order of the Tribunal is perverse and without considering the plain and simple language of sec. 274(2) r/w sec. 2(28C) and sec. 2 (19C). Elaborating his arguments he further contended that sec. 274(2) speaks that where the penalty exceeds Rs.10,000/- no order can be passed without prior approval of Joint Commissioner. He further contended that as per sec. 2(28C) 'Joint Commissioner' means a person appointed to be a Joint Commissioner of Income Tax or an Addl. Commissioner of Income Tax. He thus contended that taking into consideration the conjoint reading of sec. 274(2) and sec. 2(28C) Addl. CIT includes Joint Commissioner and in the instant case the AO has rightly taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied in holding the penalty proceedings to be void ab initio. He relied upon Brij Mohan v. CIT [1979] 120 ITR 1 (SC), Varkey Chacko v. CIT [1993] 203 ITR 885, Anirudhsinghji Karansinghji Jadeja & Anr. v. State of Gujarat AIR 1995 SC 2390(1), CIT v. Pawan Kumar Garg [2011] 334 ITR 240 (Del). He further contended that the tax / revenue involved in the instant appeal being below Rs.20 lac, in the light of Circular No.21/2015 issued by the Central Board of Direct Taxes on 10.12.2015, the appeal of the Revenue is liable to be dismissed and rather learned counsel for the Revenue ought not to have pressed for this appeal in the light of the said Circular. 12. In so far as the issue raised by the learned counsel for the assessee about the tax effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t such persons as it thinks fit to be income-tax authorities. 151. (1) No notice shall be issued under section 148 by an Assessing Officer, after the expiry of a period of four years from the end of the relevant assessment year, unless the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner is satisfied, on the reasons recorded by the Assessing Officer, that it is a fit case for the issue of such notice. (2) In a case other than a case falling under sub-section (1), no notice shall be issued under section 148 by an Assessing Officer, who is below the rank of Joint Commissioner, unless the Joint Commissioner is satisfied, on the reasons recorded by such Assessing Officer, that it is a fit case for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the learned counsel for the assessee about the Circular dated 10.12.2015. In our view the said Circular may not be applicable for the reason that the Revenue has assailed the penalty amounting to Rs.29,02,743/- and not only the penalty reduced by the CIT(A). Before the Tribunal, both the Revenue as well as the assessee preferred appeals and the entire penalty as referred to hereinbefore, was in issue before the Tribunal and now before this Court. Therefore, we reject the contention of the learned counsel for the assessee as the Circular has no application. 18. The judgments relied upon by the assessee basically are the principles of interpretation of the provisions of law, before us when the provision is self explicit clear and plain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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