1975 (7) TMI 81

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..... The Asstt. CED issued summons to the Accountable person to appear before him on 30th Dec., 1971 and the summons were served on the accountable person on 22nd Dec., 1971. The accountable person did not respond. On 31st Dec., 1971 the Asstt. CED issued a letter requiring the accountable person to show cause why a fine should not be imposed. On 6th Jan., 1972 the authorised representative of the accountable person appeared and took time till 21st Jan., 1972. But he did not appear on 21st Jan., 1972. The Asstt. CED therefore imposed a fine of Rs. 500 under s. 79 of the ED Act. 3. The appeal No. 4 concerns the estate of Againi Swain who died on 14th Sept., 1969. Here again the accountable person was not cooperating with the Department and n....

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....at s. 131(2) was enacted for the purpose of providing for the recovery of fine imposed in the income-tax proceedings. It was thus submitted that the orders of the Appellate Controller should be set aside and those of the Asstt. CED restored. 6. On the other hand it was contended on behalf of the accountable person that the present appeals to the Tribunal should not be entertained on the very ground that the order of the Appellate Controller were without jurisdiction. It was submitted that the appeals should be dismissed in limine without any decision on the merits of the case. It was also contended that s. 79 of the Estate Duty Act did not authorise imposition of fine in the absence of a specific provision similar to s. 131(2) of the IT ....

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....diction. Besides the orders of the Appellate Controller, though admittedly without jurisdiction one in essence purporting to have been made under s. 62 as the only power of the Appellate Controller to entertain the appeals against the order of the Asstt. CED is s. 62. It has been held in the case of Mela Ram and Sons 29 ITR 607 (SC) by the Supreme Court that an appeal is no less an appeal because it is irregular or incompetent and the second appeal lies to the Tribunal against the order of the Appellate authority made in an incompetent appeal. We therefore hold that even though the appeals to the Appellate Controller were incompetent and not maintainable the appeals to the Tribunal were maintainable. 8. The next question is whether the A....

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....e WT Act, 1957 (s. 37) of GT Act, 1958 (s. 36). The state a few instances, the following Acts have section similar to the ED Act relating to the power to enforce attendance of witnesses by reference to the CPC and without any separate provision for penalty in case of failure to comply with the summonses. Administrators General Act, 1963 (s. 48), Advocate Act, 1961 (s. 43) (also power to send summons to Court for service), Chartered Accountants Act, 1949 (s. 21(8), Commissions of Enquiry Act, 1952 (s. 4), Employees State Insurance Act, 1948 (s. 78), Employees Provident Fund Act, 1952 (s. 7A), Expenditure Tax Act, 1957 (s. 33), Foreign Exchange Regulation Act 1973 (s. 53), Industrial Disputes Act, 1947 (s. 11(3), Inter State Water Disputes Ac....