Case: Commissioner Of Income-Tax,Andhra Pradesh Vs. Mis. Bhikaji Dadabhai &amp; Co

1. M/s. Bhikaji Dadabhai and Co. - hereinafter called the assessees - owned an oil mill at Khammamath in the area of the former State of Hyderabad. For the year of assessment Fasli 1357 (October 1, 1946, to September 30, 1947), the assessees returned an income of Rs. 50,384/-. The income-tax Officer found that the books of account maintained by the assessees were unreliable and by his order dated February 10, 1950, he assessed their total income at Rs. 1,63,131/-. The Income-tax Officer had, before finalising the assessment, issued on December 22, 1949, a notice to the assessees under S. 40 of the Hyderabad Income-tax Act requiring them to show cause why penalty should not be imposed upon them and by order dated October 31, 1951, directed the assessees to pay by way of penalty Rs. 42,000/- in addition to the tax. This order was confirmed in appeal by the Appellate Assistant Commissioner. In appeal, the Income-tax Appellate Tribunal observed that by virtue of the provisions of S. 13(1) of the Indian Finance Act, 1950, the Hyderabad Income-tax Act had ceased to have effect and as the power to impose penalty under S. 40 of the Hyderabad Income-tax Act was not saved, the order of imposing penalty was without jurisdiction. The Tribunal observed :"The Income-tax Officer may have been in error in imposing the penalty, but there was no appeal against the order of the Income-tax Officer to the Appellate Assistant Commissioner. Section 42(1) of the Hyderabad Income-tax Act gives a right to an assessee to appeal if he objects to an order under S. 40 made by an Income-tax Officer. Section 40 ceased to have effect. There can therefore be neither an order under S. 40 nor an appeal against the order if an order has been wrongly made. The remedy of the assessee lies elsewhere, and not by way of an appeal to the Appellate Assistant Commissioner, and on that view dismissed the appeal. At the instance of the assessees, the following questions were referred by the Tribunal to the High Court of Judicature at Hyderabad :1. Whether on 31-10-1951, the Income-tax Officer, Warrangal Circle had the power to impose a penalty under S. 40(1) of the Hyderabad Income-tax Act in respect of the assessment for the year 1357F. ?2. Whether the assessee had a right to appeal against the order of the Income-tax Officer imposing the penalty ?3. If the Appellate Assistant Commissioner did not have jurisdiction to hear the appeal, whether the order of the Appellate Assistant Commissioner is a nullity and therefore the order of the Income-tax Officer erroneous, though it may stand until it is set aside by a competent authority?2. The High Court answered the first and the third questions in the negative and the second question in the affirmative. The High Court observed that the Appellate Assistant Commissioner had power to entertain the appeal in which the question of the power of the Income-tax Officer to impose a penalty was challenged, and the decision of the Appellate Assistant Commissioner was not without jurisdiction. The High Court also proceeded in a petition separately filed by the assessees to direct the Income-tax Appellate Tribunal to set aside the order of the Income-tax Officer imposing a penalty as a logical consequence of the view the Tribunal had taken regarding the absence of power in the Income-tax Officer to levy a penalty. Against the order passed by the High Court, this appeal with special leave is preferred.

Reasoning:
3. We are in agreement with the High Court that the appeal to the Appellate Assistant Commissioner was competent. Even if the Income-tax Officer committed an error in passing the order imposing penalty because the conditions necessary for invoking that jurisdiction were absent, an appeal against his order on the ground that he was not competent to pass the order did lie to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner is under the Act constituted an appellate authority against certain orders of the Income-tax Officer, and exercise of that jurisdiction is not made conditional upon the competence of the Income-tax Officer to pass the orders made appealable. The Appellate Assistant Commissioner had as a court of appeal jurisdiction to determine the soundness of the conclusions of the Income-tax Officer both on questions of fact and law and even as to his jurisdiction to pass the order appealed from.4. We are, however, unable to agree with the High Court that because of the repeal of the Hyderabad Income-tax Act by the Finance Act, 1950, the power to impose a penalty in respect of the years preceding the date of repeal was lost. The State of Hyderabad merged with the Indian Union during the pendency of the proceedings before the Income-tax Officer.This Court regarded penalty as an additional tax imposed upon a person in view of his dishonest or contumacious conduct. It is true that under the Hyderabad Income-tax Act, distinct provisions are made for recovery of tax due and penalty, but that in our judgment does not alter the true character of penalty imposed upon the two Acts. Nor are we able to agree that because in respect of the Sea Customs Act, 1878, the Indian Tariff Act, 1934, the Land Customs Act 1924, the Central Excise and Salt Act, 1944, and the Indian Post Offices Act, 1898, which were extended to the whole of India by S. 11 of the Finance Act, 1950, and the provisions corresponding thereto were repealed by the proviso, and it was expressly provided that the previous operation of the corresponding law or any penalty, forfeiture or punishment ordered in respect of an offence committed any such law or any investigation, legal proceeding or remedy in respect of such penalty, forfeiture or punishment or any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the Act had not been passed, that under sub-sec. (1) of S. 13 it was intended to prohibit the authorities otherwise competent in that behalf from commencing or continuing the proceeding for levying penalty even if the circumstances justify such a course. The scheme of the statutes specified in S. 11 and which are repealed by sub-sec (2) of S. 13 are somewhat different from the scheme of the Indian Income-tax Act. Because by sub-sec.(1) of S. 13 of the Finance Act, 1950, the Hyderabad Income-tax Act was to cease to operate as on April 1, 1950, except for the purposes of levy, assessment and collection of income-tax and super-tax, whereas in respect of other Acts specified in S. 11 substantially provisions similar to those contained in S. 6 of the General Clauses Act were enacted, an intention that proceedings for penalty may be commenced and continued under the Acts specified in S. 11, whereas no such proceedings may be commenced or continued under the Hyderabad Income-tax Act is not indicated. We are of the view that the High Court erred in holding that the proceedings for imposing the penalty could not be continued after the enactment of S. 13(1) of the Finance Act, 1950.