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COMMISSIONER OF INCOME TAJ( ORISSA

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DHADI SAHU

NOVEMBER 18, 1992

[YOGESHWAR DAYAL AND DR. A.S. ANAND, JJ.]

Income Tax Act, 1961: Sections 271( l)(c) and 274(2)--Penalty--{mposition of-lurisdiction of the Income Tax Officer/Inspecting Assistant Commissione!"-Amendment of provision subsequent to reference to IA.C.-Effect C of-Whether jurisdiction of IA.C. ousted even in a pending reference-Order

.p'Ossed by /A.C. after amendment-whether valid.

Practice & Procedure: Amendment of provision of statute-Change of f ornm not to affect pending actions unless intention to contrary is clearly shown.

Under Section 27l(l)(c) of the Income Tax Act, 1961 as it stood before April 1, 1971, the Income-tax Officer had no jurisdiction to impose penalty if the minimum penalty imposable exceeded Rs.1,000.00 and in such a case he was bound to make a reference to the Inspecting Assistant Commissioner, who, on. such reference exercised all the powers conferred under Chapter XXI for the imposition of penalty. However, with effect from April 1, 1971 when the Amending Act of 1970, by which Section 274(2) was amended came into force, the Income-tax Officer could impose penalty . . . under Section 271(1)(c) if the amount of income in respect of which the particulars were concealed .or inaccurate particulars were furnished did F not exceed Rs.25,000.00 If the amount exceeded Rs.25,000.00 he was required to refer to the case to the Inspecting Assistant Commissioner, who then got jurisdiction to ipose penalty •.

In the instant case, the respondentassessee, an individual had dis- G closed in his return for the assessment years, 1968-69 and 1969-70 only his own share of the profits of a firm of which he was a partner but failed to disclose the income falling to the share of the minor children from house property which ostensibly stood in the name of his wife but really belonged to the assessee, the wife being only a benanmi.

H The assessment orders were passed on February 23, 19.70 and the 168

C.l.T. v. DHADI SAHU 169

Income-tax Officer initiated proceeding~ for the imposition of penalty A under Section 271(1)(c) of the Act, and referred the matter to the Inscting Assistant Commissioner under Section 274 (2) of the Act, since the penalty imposable exceeded Rs.1,000. Thereafter, on February 15, 1973, after the amendment of Section 274(2), the Inspecting Assistant Commissioner passed orders imposing penalties of Rs.24,000 and 12,500 respec- B tively for the two assessment years.

The respondent-assessee preferred appeals to the Income-tax Appellate Tribunal. The Tribunal allowed the respondentassessee's appeals and cancelled the penalties, holding that in view of the amendment made to Section 274(2) of the Act with effect from April 1, 1971, the Inspecting C Assistant Commissioner had lost his jurisdiction .

. On the Revenue's application, the Tribunal made a reference to the High Court under Section 256(1) of the Act on the question oflaw, whether, on a true interpretation of Section 274, as amended by the Taxation Laws D (Amendment) Act, 1970, the Inspecting Assistant Commissioner to whom the case was referred prior to April 1, 1971, had jurisdiction to impose penalty. The Division Bench of the High Court held that even in a reference which was pending under Section 274(2) on the date when the Section stood amended, the Inspecting Assistant Commissioner could not pass E and order imposing penalty if the amount of income concealed did not exceed Rs.25,000. In the instant case, the penalty imposable exceeded

Rs.1,000 but the amount the income in respect of which particulars were concealed did not exceed Rs.25,000.

On the High Court's refusal to grant certificates of fitness. for appeals, the Revenue preferred appeal, by special leave, to this Court. It was contended that although the order of imposition of penalty was passed

by the Inspecting Assistant Commissioner after the Amending Act had come into force, yet if the reference made by the Income-tax Officer was validly made before that date, the Inspecting Assistant Commissioner G continued to have jurisdiction to impose penalty and hence the amendment brought out in Section 274(2) with effect from April 1, 1971, was oot applicable to pending references.

Allowing the appeals, this Court H

HELD: 1.1. The general. principle is that a law which brings about a change in the forum does not affect pending actions unless intentin to the contrary is clearly shown. One of the modes by which such an intention is shows, Is by making a provision. for change over of proceedings, from the court or the Tribunal where they are pending to the court or the Tribunal B which under the new law gets jurisdiction to try them. (176-B-C]

1.2. Sectin 274 (2) of. Income Tax Act, 1961, as it stood prior to its amendment required the Income-tax Officer to refer the case to Inspecting Assistant Commissioner if the minimum penalty imposable exceeded Rs.1,000. The Inspecting Assistant Cmmissioner on a.reference made by C the' Income-tax Officer got jurisdiction to impose penalty in such cases.

The jurisdiCtion on Inspecting Assistant Commissioner was conferred by . virtue of the reference. The reference was validly made by the Income-tax Officer before the amendment eame into force. (176-D, E]

D 1.3. The Amending ct did not make any provision that the references validly pending before the Inspecting Assistant Commissioner should be returned without passing any final order ifthe amount of income in respect of which the particulars had been concealed did not exceed

Rs.25,000.00. The previous operation of Section 274 (2) as it stood before the amendment came into force and anything done thereunder, continued E to have effect under Section 6(b) of the General Clause Act, 1897, enabling

the Inspecting Assistant Commissioner to pass orders imposing penalty in pending references. The Amending Act does not show that the pending proceedings before the court on reference abate. (176-F-H; 177-A; 179-A]

F 1.4. In the circumstances, the Advisory opinion given by the High

Court was wrong and the answer should be in favour of the Revenue-appellant. Tlie inspecting Assistant Commissioner to whom the case was referred prior to the amendment came into force and jurisdiction to impose the penalty. What is material to be seen is as to when the reference were initiated. If the reference was made before the amendment came into force, it would be governed by Section 274(2) as it stood before that date and Inspecting Assistant Commissioner would have jurisdiction to pass the order of penalty. (176-E, G, H; 177-A]

1.5. No litigant has any vested right in the matter of procedural law, H but where the question is of change of forum it ceases to be a question of

C.l.T. v. DHADI SAHU [DAYAL, J.) 171

procedure only. The forum of appeal or proceedings is a vested right as A opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the Tribunal or the court of first instance and unless the legislature has by express words or by necessary implication clearly so indicated, that vested right full continue in spite of the change of jurisdiction of the different Tribunals B or forums. [177-B-C]

Manujendra Dutt v. Pumedu Prosad Roy Chowdhury, A.I.R. 1967 S.C. 1419 and Mohd. Idris v. Sat Narain, A.I.R. 1966 S.C. 1499, relied on.

Co'mmissionerof Income-tax v. Royal Motor Car Co., (1977) 1071.T.R. C 753; Commissioner of Income-tax Gujarat-W v. Sa/abhai & Co., (1980) 122 l.T.R. 301! Commissioner of Income-tax, Bihar-I v. Ganga Dayal SaTju Prasad, (1985) 155 l.T.R. 618; C<11nmissioner of Income-tax, Patia/a-I v • . Raman Industries, (1980) 121 l.T.R. 405; Commissioner of Income-tax v.

Deorao Shrawan Maundekar, (1988) 169 l.T.R.19; Commissioner of Income- D tax v. Rizuma/ Phernmal, (1988) 169 I.T.R. 25; Commissioner of Income-tax, West Bengal-I v. Eastern Development t:orporation, (1982) 135 l.T.R. 516 and Commissioner of Income-tax, M.P. v.A.N. Tiwari, (1980) 124 I.T.R. 680, approved. [177-D-F]

Commissioner of Income-tax v. Om Sons, (1979) 116 l.T.R. 215 and E Addi. Commissioner of Income-tax Kamataka v. M. Y. Chandragi, (1981) 128 l.T.R. 256, overuled.

CIVIL APPELLATE JURISDICTION 1789 of 1977.

Civil Appeal Nos.ii88-

From the Judgment and Order dated 5.12.1975 of the Orissa High Court in S.J,.C. Nos.176 & 177 of 1974.

J. Ramamoorthy, S. Rajappa and Ms. A. Subhashini for the Appellant.

C.S.S. Rao (NP) for the Respondent.

The Judgment of the Court was delivered by

YOGESHWAR DAYAL, J. These are two appeals in view of the H

A Special Leave granted by this Court by order dated 4th August, 1977 against the judgment and ordr dated December 5, 1975 of the Orisa l:Iigh Court in S.J.C. Nos. 176 and 177 of 1974 rendered in its advisory jurisdiction on a consolidatd case stted _by the Income-tax Appellate Tribnal Cuttack Bench.on a question of lw arising ot of the. Tribunal's con~ B. solidated appella_te order datedDecemer 19, 1973 in LT.A. Nos'. 153 and 154 (CTK.) of 1973-74.

The facts giving rise to these appeals, briefly stated, are as follows :

The respondent (hereinafter referred to as 'the assessee') is an C individua.I and the proceedings reiated to the imposition of penalty under section 271 (l)(c) read with Section 274(2) of the. Income-tax Act, 1951 (hereinafter referred to as 'the Act') for the assessment years _1968-69 ancl 1969-70. For those two years the assessee had disclosed in his return only his own share of the profits of a firm , of which he was a partner out failed D to disclose the. income falling to t_he share of the minor children from house property which ostensibly stood in the name of his wife but really belonged to the assessee, the wife beig only a benanmi. The incoms returned and assessed were as follows:-

Assessment year Income returned Income assessed E 1968-69 .. 6,940.00 30,840.00 .

1969-70 7,020.00 14,472.00

The assessment orders -were passed on February 28,' 1970. The Income-tax Officer initiated proceedings for the impos1tion of penalty F under Section 271(1)(c) of the Act and the matter was referredto the

Inspecting Assistant Commissioner since Section 274(2) of the Act.

On February 23, 1970 i.e. on Jhe date of. the assessment orders, Section 274 (2) of the Act provides as follows:-

"Notwithstanding anything contained in clause (iii) of subsection (1) of Section 271, if in a case falling under clause

(c) of that sub-section, the minimum penalty imposabk exceeds a sum of Rupees one thousand, the Income-tax Officer shall refer the case to the Inspecting Assistant Commissioner, who shall, for the purpose, _have all the.

C.LT. v. DHADI SAHU [DAYAL, J.]

powers conferred under this chapter for the imposition of penalty".

Pending reference of the case before the Inspecting Assisting C<;>mmissioner, Section 274(2) of the Act was amended with effect from April 1, 1971 by the Taxation Laws (Amendment) Act, 1970 (hereinafter referred to as 'the Amending Act') so as to read as follows:-

"Notwithstanding anything contained in clause (iii) of Subsection (1) of Section 271, if in a case falling under clause

(c) of that sub-section, the amount of income (as determined by the Ip.come-tax Officer on assessment) in respect of which the particulars have been concealed or inaccurate particulars have been furnished exceeds a sum of

twentyfive 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 upon this Chapter for the imposition of penalty".

The fact of concealment as found in the assessment orders was not disputed in the penalty proceedings.

Thereafter on February 15, 197'.'.t, the Inspectig Assistant Commissioner passed orders imposing penalties of Rs.24,000.00 and Rs.12,500,.00 respectively for the assessment years 1968-69 and 1969-70.

The assessee preferred appeals to the Income-tax Appellate Tribunal and the Tribunal by its consolidated order dated December 19, 1973 allowed the assessee's appeals and cancelled the penalties holding that in view of the amendment made to Section 274 (2) of the Act with effect from April 1, 1971, the Inspecting Assistant Commissioner had lost his jurisdiction.

On the revenue's application, the appellate TribunaI stated the consolidated case to the Orissa High Court under Section 256 (1) of the Act and referred the following question of law :

'Whether, on the facts and circumstances of the case, and

on a true interpretation of Section 274, as amended by the H

Taxation Laws (Amendment) Act, 1970, the Inspecting Assistant Commissioner to whom the case was referred prior to April 1, 1971, had jurisdiction to impose penalty?"

By the judgment dated December 5, 1975 a Division Bench of the Orissa High Court answered the question in favour of the assessee.

. Th~ appellant thereupon preferred applications under Section 261 ot the Act for certificates of fitness for appeals to this Court but the High Court rejected those applications. That is how the matter came up to this Court by way of Special Leave Petitions and this Court granted the Special Leave, as stated earlier, by its order dated 4th August, 1977.

We had the advantage of hearing, Mr.J. Ra!llamurthy, Seriior Advocate, on behalf of the appellant who argued the. matter very fairly inspite of th; fact that nobody appeared on behalf of the rspondent despite service.

The learned Judges of the Orissa High Court agreed with the appellate orcfer of .the Income-tax Appellate Tribunal, Cuttack dated December 19, 1973 and took the view thus:

"If the Inspecting Assistant Commissioner had passed final orders prior 'to the amending Act of 1970, there would have been no question of loss of jurisdiction, but as the · mattet was still pending and by change of procedure the references became incompetent, the Inspecting Assistant Commissioner had no jurisdiction to complete the proceedings, because he had no longer jurisdiction to deal with the matter of . this type. We are of the view that the Tribunal came to the right conclusion on the facts of the case. Our answer to the question referred to us, therefore,

lS :

- On the facts and in the circumstances of the case, and on a true interpretation of Section 274, as amended by the Taxation Laws (Amendment) Act of 1970, the Inspecting Assistant Commissioner to whom the case had been referred prior tol971 had no jurisdiction to impose penalty."

C.l.T. v. DHADISAHU [DAYAL, J.] 175

It will be seen that the power to impose penalty under Section 271 A is conferred on the Income-tax Officer and the Appellate Assistant Commissioner. The power of the Income-tax Officer, however, is subject to the provisions made in Section 274 of the Act. The provisions of Section 274 before its amendment by the Amending Act have already been noticed earlier. By Section 49 of the Amending Act which came into force on April B 1, 1971 for the words "the minimum penalty imposable exceeds a sum of Rupees one thousand'; in Section 274 (2), the words and brackets " the amount of income (as determined by the Income-tax Officer on assessmenl) in respect of which the particulars have been concealed or inaccurate particulars have been furnished exceeds a sum of twenty-five thousand rupees" were substituted." C

It will be seen that till April 1, 1971 the Income-tax Officer had no jurisdiction to impose penalty undf'.r Section 271 (l)(c) qf the Act if the minimum penalty imposable exceeded Rs. 1,000.00 and in such a case he was bound to make a reference to the Inspecting Assistant Commissioner, D who, on such reference exercise all the powers conferred under Chapter XXI for the imposition of penalty. From April 1, 1971 the Income-tax Officer could impose penalty under Section 271 (l)(c) if the amount of income in respect of which the particulars were concealed or inaccurate particulars were furnished did not exceed Rs.25,000.00. If the amount of such income exceeded Rs.25,000.00 the Income-tax Officer was required E to refer the case to the Ins='ecting Assistant ommissioner who then, got jurisdiction to impose penalty. Now, in the present case the minimum penalty imposable exceeded Rs.1,000.00 but the amount of income in respect of which the particulars were concealed did not exceed Rs.25,000.00 and the order of the Inspecting Assistant Commissionet was F bassed on 15th February, 1973 i.e. after the coming into force of the Amending Act which amended Section 274 (2), of the Act.

The learned counsel for the appellant submitted that although the order of imposition of penalty was passed by the Inspecting Assistant Commissioner after the Amending Act had come into force yet if the G reference made by the Income-tax Officer was validly made before that date, the Inspecting Assistant Commissioner continued to have jurisdiction to impose penalty. In other words the argument is that the amendent brought out in Section 274 (2) with effect from April 1, 1971 was not applicable to pending references.

SUPRH1E COURT REPORTS [1992] SUPP .. 3 S.C.R.

The view. of the High Court on the other hand is that even in· a reference which was pending under Section 274 (2) on the date when the . Section stood amended, the Inspecting Assistant Commissioner could not pass any order imposing penalty if the amount of income concealed did not exceed Rs.25,000.00.

It may be stated at the outset that tpe general principle is that a law which brings about a change in the forum does not affect pending actions unless intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for change over of proceedings, from the court or the Tribunal where they are pending to the court or the Tribunal which under the new law gets jurisdiction to try ' . them.

Section 274 (2) as..it stood prior to April 1, 1971 required the Income-tax Officer to refer the case to Inspecting Assistant Commissioner D if the minimum penalty imposable exceeding Rs.1,000.00.The Inspecting

ssistant Commissioner on a reference made by the Income-tax Officer

got jurisdiction t<l impose penalty in such cases. The jurisdiction on Inspecting Assistant Commissioner was conferred by virtue of the reference.

The reference was validly made by the Income-tax Officer before April 1,

1971. The question is did the amendment to Section 274 divest the Inspect- E ing Assistant Commissioner of his validly acquired jurisdiction or the amendment ousted his jurisdiction merely because the amount of concealed income did not exceed Rs. 25,000.00 and the case did not satisfy the requirement of Section 274(2) as amended.

F It will be noticed that the Amending Act did not make any provision that the references validly pending before the Inspecting Assisting Commissioner shall be returned without passing any final order if the amount of income in respect of which the particulars have been concealed did not exceed Rs.25,000.00. This supports the inference that in pending references the Inspecting Assistant Commissioner continued to . have jurisdiction to G impose penalty. The previous operation of Section 274 (2) as it stood before April 1, 1971, and anything done thereunder continued to have effect under Section 6(b) of the General Clauses Act, 1897, enabling the Inspecting Assistant Commissioner to pass order imposing penalty pending references. In our opinion, therefore, what is material to be see.n is as H to when the references were initiated. If die reference was made before

C.l.T. v. DHADI SAHU (DAY AL, J.]

April 1, 1971, it would be governed by Section 274 (2) as it stood before A that date and Inspecting Assistant Commissioner would have jurisdiction to pass the order of penalty.

It is also true that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases tb be 3: question of procedure only. The forum of appeal or proceediI_lgs is a vested right as opposed to pure procedure to be followed before a particular forum. The right becomes vested when the procedings are initiated in the Tribunal. or the court of first instance and unles.s the legislature has by express words or by necessary implication clearly so indicated, that vested right will continue in spite of the change of jurisdiction of the different Tribunals of forums.

This view of ours finds support in two decisions of the Gujarat High Court reported as Commissioner of Income-tax v. Royal Motor Car Co.,

(1977) 107 I.T.R. 753, Commissioner of Income-tax, Gujarat-IV v. Salabhai D & Co., (1980) 122 I.T.R. 301; a decision of the Patna High Court .in Commissioner of Income-tax, Bihar-1 v. Ganga Dayal Sarju Prasad, (1985) 155 I.T.R. 618; a decision of the Punjab and Haryana High Court in Commissioner of Income-tax, Patiala-I v. Raman Industries, (1980) 121 I.T.R. 405. Bombay, Calcutta and Madhya Pradesh High Courts have also taken the same view. The Bombay High Court in the case reported as E Commissioner of Income-tax v. Deorao Slzrawan Maundekar, (1988) 169 I.T.R. 19 speaking through Bharucha, J. (as His Lorship then was) expressly dissented from the judgment under appeal before us and preferred to follow an earlier judgment of the Bombay High Court report(fd as C<; mimissioner of Income-tax v. Rizumal Plternmal, (1988) 169 I.T.R. 25. A F Division Bench of the Calcutta High Court also took the same view in Commissioner of Income-tax, West Bengal-I v. Eastem Development Corporation, (1982) 135 I.T.R. 516. A Division Bench of the Madhya Pradesh High Court in Commissioner of Income-tax, M.P. v. A.N. Tiwari, (1980) 124 I.T.R. 680 followed the view of the Gujarat High Court and dissented from the judgment under appeal.

The Allahabad High Court in the case reported as Commissioner of Income-tax v. Om Sons, (1979) 116 I.T.R. 215, however, followed the Judgment under appeal and dissented from the view expressed by the Gujarat High Court. The Allahabad High Court had taken the view that a H

A Court or Tribunal deciding a matter must not only be possessed of jurisdiction. initially but must also be clothed with the power to dec!de the matter when the final order is passed.

The Karnataka High Court in Addi. Commissioner of Income-tax, Kamataka v. M. Y. Chandragi, (1981) 128 I.T.R. 256 took the same view as the Allahabad High Cour~ and held that the question of jurisdiction will depend on the lw prevailing as on the date when the penalty is imposed.

In Mdnujendra Dutt v. Pumedu Prosad Roy Chowdhury, A.LR. 1967 S.C. 1419 at pages 1421-1422 this Court considered the effect of the C deletion of Section 29 of the Calcutta Thika Tenancy Act, 1949, by the Calcutta Thika Tenancy (Amendment) Act, 1953 in the context of the pending a, ction. The suit for ejectment against a tenant was instituted in a civil court in 1947. In view of Section 29 of the Thika Tenancy Act, 1949, the suit was transferred to the Controller. During the pendency of the suit D before the Controller, Section 29 was deleted by the Amending Act. The question tha~ arose was whether by deletion of Section 29 the jurisdiction of the Controller over a pending suit was taken away. It was held by this Court that the deletion of Section 29 did not deprive the Controller of his jurisdiction to try the suit pending before him on the date when the

Amending Act came into force. It was pointed out that though the Amending Act did not contain the saving clause the savings contained in Section 8 of the Bengal General Clauses Act, 1899, corresponding to Section 6 of the Central Act, applied and the transfer of the suit having been lawfully made under Section 29 of the Act, its deletion by the Amending Act, did not affect its previous operation or anything duly done thereunder. Similarly, in Mohd. Idris v. Sat Narain, A.LR. 1966 s:c. 1499, the question was whether the Munsif who was trying a suit under the U.P. Agriculturists Relief Act ceased to have jurisdiction after the passing of the U.P. Zamindari Abolition and Land Reforms (Amendment) Act, 1953, which conferred jurisdiction on the Assistant Collector. This Court held that the jurisdiction of the Assistant Collector was itself created by the Abolition G Act and as there was no provision in that Act that the pending cases were to stand transferred to the Assistant Collector for disposal, the Munsif continued to have jurisdiction to try the suit. It was observed that the provisions for change-over of proceedings from one court to another are commonly found in a statute which takes away the jurisdiction of one court H and confers it to the other in pending actions.

C.I.T. v. DHADISAHU[DAYAL, J.) 179

Surely the Amending Act does not show that the pending proceed- A ings before the court on reference abate.

We are thus of the considered view that the advisory opinion given by the High Court to the question referred to it was wrong and the answer should be in favour of the appellant and it is held that the Inspecting Assistant Commissioner to whom the case was referred prior to April 1, B 1971 had jurisdiction to impose the penalty. The view expressed by the Allahabad High Court in 116 I.T.R. 215 (supra) and the Karnataka High Court in 128 I.T.R. 256 (supra) does not, therefore, lay down the conect law.

The result is that the appeals succeed and the order of the High C Court dated 5th December, 1975 is set aside. However, in view of the difference of opinions of the different High Courts, the parties are left to bear their own costs of the present proceedings.

N.P.V.

Appeals allowed. ·