TaxTMI 
TaxTMI 
1981 (10) TMI 59
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.... us are that on the returns originally filed by the assessee for the years under consideration, the ITO completed the assessment as detailed below: -------------------------------------------------------------------------------------------------------------------------------------------------- Year of Date of Total income Date of Total assessment filing returned by assessment income &n....
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....sp; 11-10-1965 58,870 -------------------------------------------------------------------------------------------------------------------------------------------------- 3. Later on, the ITO came to know that certain loans which had been accepted by him as genuine in the aforesaid assessments of the assessee were bogus. He, accordingly, reopened the assessments of the assessee for the aforesaid four years under section 147(a). The reassessments for the first three years were completed under section 144/147(a). The details about the dates of the issuance of the notice under section 148/147(a) and their service on the assessee and the total income assessed for those three years under section 144/147(a) are as under: -------------------------------------------------------------------------------------------------------------------------------------------------- Year of Date of ....
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....bsp; 26-3-1968 2,05,053 19-1-1972 1960-61 31-3-1969 31-3-1969 1,60,749 30-3-1973 --------------------------------------------------------------------------------------------------------------------------------------------------- 4. In the appeals filed by the assessee against these reassessments, in so far as the accounting period relevant to the assessment year 1958-59 is concerned, the AAC, Range I, Calcutta, vide his order dated 27-6-1974, set aside the said reassessments in order to enable the ITO to make a fresh assessment giving effect to the terms of the settlement reached between the assessee and the department to which we will be making a refe....
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....ces to the assessee as to why penalties be not levied against him under section 271(1)(c) for having concealed the particulars of his income and/or furnishing inaccurate particulars thereof. The said notice for the first year was issued by the ITO on 19-1-1971 and the same was served on the assessee on 27-1-1971. For the second year, the said notice was issued on 18-1-1972, which was served on the assessee on that very date. Pursuant to the said notices, the IAC, Range VIII, Calcutta, vide his orders dated 20-1-1973, levied penalties of Rs. 20,000 for the assessment years 1958-59 and Rs. 1,00,000 for the assessment year 1959-60 against the assessee under section 271(1)(c). The penalty order for the first year was set aside by the Tribunal (Calcutta Bench 'C'), vide its order dated 30-8-1974, in IT Appeal No. 5601 (Cal.) of 1972-73, as the reassessment order for that year had been set aside by the AAC, as already stated in para 4 above. Penalty order for the second year was also set aside by the Tribunal (Calcutta Bench 'C'), vide its order dated 4-7-1974, in IT Appeal No. 5777 (Cal.) of 1972-73 as the appeal of the assessee against the order of the AAC dismissing the appeal of the ....
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.... 33,110 (marked Annexure 'C') for the periods from (i) 21-10-1961 to 29-3-1966, and (ii) 30-3-1966 to 1-4-1967, respectively. The peak of Rs. 2,65,000 reached on 28-3-1966 as per Rotation statement (Annexure 'A') is inclusive of Rs. 10,000 reintroduced out of the said sum of Rs. 22,823 and the balance amount of interest, i.e., Rs. 12,823 the assessee held in cash. On 1-4-1967 the amounts standing at credit were transferred to the accounts of the abovenamed assessees. 3.2 Besides, an amount of Rs. 4,053 representing 20 per cent of Rs. 20,265 (amount of interest charged before the peak was reached---marked Annexure 'D') will be treated as commission paid to name-lenders and taxed in the respective assessment years. 4. In the course of hearing the assessee wanted to have the benefit of the following amounts by way of deduction from the disclosed amount : (i) Intangible additions to the tune of Rs. 77,534 and Rs. 19,800 (total Rs. 97,334) made to the trading A/c of M/s Geekay Transport Corporation for the assessment years 1960-61 and 1961-62 respectively and sustained by the ITAT, and (ii) Addition of Rs. 10,000 made in the assessment of M/s Geekay Transport Corporation for....
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....nbsp; Rs. Rs. 1958-59 45,000 --- 45,000 1959-60 75,000  ....
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....bsp; 9,533 1963-64 --- 3,759 3,759 1964-65 --- 2,671 &....
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....nbsp; 2,45,000 59,986 3,04,986 ------------------- ----------------- ---------------- --------------------------------------------------------------------------------------------------------------------------------------------------- The amounts of credits and in....
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....t appears that the assessee on his own accord filed fresh returns for each of those four years on 20-9-1974. Admittedly, these returns were filed pursuant to the notices issued under section 148. The income disclosed by the assessee in these returns for the years under consideration are as under: --------------------------------------------------------------------------------------------------------------------------------------------------- Year of Income disclosed Head under which the income assessment disclosed....
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....sp; order of CIT, WB dated 30-3-1974 22,500 &nbs....
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....bsp; original assessment 51,001 (b) 50 per cent share as per settlement order &....
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....p; 1,04,672.26 (a) Business income as per original assessment 2,000 (b) Share from firm as per ....
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....p; ---------------- (d) 50 per cent share as per &....
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....; ---------------- 1961-62 1,09,944 (a) Salary 5,500 &nb....
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....; 1,09,944  ....
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....ee had expressly agreed to. The assessee in these appeals cannot turn round and say that the penalties so levied were bad in law. The assessee agreed to this minimum penalties being imposed at the rate of 20 per cent of the tax sought to be avoided in terms and conditions of the aforesaid settlement and the penalties have been levied by the IAC, accordingly. The assessee cannot be said to be aggrieved against these penalty orders. Further, the departmental representative pressed into service the principle of promissory estoppel as approved by the Supreme Court in Motilal Padampat Sugar Mills Co. Ltd. v. State of U. P. [1979] 118 ITR 326, and urged that where one party by his words or conduct makes to another a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is be binding on fact so acted upon by the other party, the promise would made and it is in the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have been taken p....
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....sum of Rs. 25,000 in each of those years. To put in other words, Mr. Agarwalla argued that assuming without admitting that section 274(2), though omitted with effect from 1-4-1976, prior to the making of the impugned orders of the IAC on 31-3-1977 for the aforesaid three years was to be considered to decide the authority who had the inherent jurisdiction to levy the impugned penalties for those years ; that was absent in the present case. The IAC would have had that jurisdiction if the amount of the income as determined by the ITO on reassessment for those three years in respect of which the particulars have been concealed exceeded the sum of Rs. 25,000 in each or those years. That was not so in the present case because the amounts so allegedly concealed in each of the said three years stood at Rs. 22,500 (assessment year 1958-59), Rs. 15,000 (assessment year 1960-61) and Rs. 18,570 (assessment year 1961-62). Since the IAC did not have the inherent jurisdiction to levy the penalty for these three years, the assessee in these appeals can challenge the validity of these penalty orders because there being an inherent lack of jurisdiction, the penalty orders for each of the three years....
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....essee detailed in the preceding paragraph is concerned, the stand of the senior departmental representative, Mr. Ghose, is that since the penalties have been levied in accordance with the terms and conditions of the aforesaid settlement between the Commissioner and the assessee and further because the ITO had issued the show cause notices to the assessee as to why penalties be not levied against him for the years under consideration under section 271(1)(c) prior to the reference to the IAC, the IAC, in the facts and circumstances of the case, had no option but to levy the penalty even without giving a fresh notice of hearing. In support of these arguments, the departmental representative has relied on the decision of the Calcutta High Court in CIT v. Wesman Engineering Co. (P.) Ltd. [1976] 104 ITR 605 (Cal.) and Mool Chand Mahesh Chand v. CIT [1978] 115 ITR 1 (All.) at pages 6 & 7. 13. We have given consideration to the above arguments. When we talk of "jurisdiction" of the court or an authority, it, in effect, means the authority which a court/officer has to decide matters that are litigated before it/him or to take cognizance of matters presented in a formal way for its/his de....
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....gns Act, as they were in force, such a suit can only be brought in a District Court, but it was brought in the court of a subordinate judge who had no jurisdiction to entertain it. The suit was eventually transferred from the subordinate judge's court to the District court, and there heard and decided. The defendant contended that an order for transfer of a suit from one court to another under section 24 of the Code of Civil Procedure could not be made unless the suit had been brought in a court having jurisdiction, but this contention was over-ruled. The same view was taken by the High Court on appeal. The matter then reached to the Judicial Committee and it held that the suit having been instituted in a court which had no jurisdiction, no order of transfer could be made, but that the District Court being competent to entertain and try the suit if it was competently brought, the defendant could waive the objection to the irregularities of its institution, but that he had not done so and the decree of the District Court could not, therefore, stand and it ought to have been set aside by the High Court. Lord Watson in delivering the judgment of the Board said : "The District Judge....
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....ent to entertain or try the suit or proceedings before it/him, let us come to the principle of promissory estoppel on which great emphasis has been laid by the senior departmental representative, Mr. A.K. Ghose, and examine as to whether the said principle of promissory estoppel impinges on the right of an appellate authority, like the Tribunal, in a case like the one before us, to examine whether there was an inherent lack or jurisdiction in the IAC to pass the impugned penalty orders for the assessment years 1958-59, 1960-61 and 1961-62 and so those penalty orders were a nullity. This principle of equity promissory estoppel---has been restated in the leading case on the subject reported as High Trees' [1966] 1 All. ER 256 (King's Bench). The facts in that case were as follows : The plaintiffs leased out to the defendants, a subsidiary of the plaintiffs, in 1937 a block of flats for 99 years at a rent of pound 2,500 a year. Early in 1940 and because of the war, the defendants were unable to find sub-tenants for the flats and unable in consequence to pay the rent. The plaintiffs agreed at the request of the defendants to reduce the rent to pound 1,250 from the beginning of the term....
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....approached financiers for financing the project and initiated negotiations with manufacturers for the purchase of machinery for the factory. In December 1968, the Chief Secretary to Government and Advisor to the Governor reiterated the assurance that the appellant would be entitled to the tax holiday. On the appellant's request for confirmation, the Chief Secretary in a reply dated December 22, 1968, confirmed that the State Government will be willing to consider your request for grant of exemption from U.P. Sales Tax for a period of three years from the date of production and asked the appellant to apply formally to the Secretary in the Industries Department and in the meantime to 'go ahead with the arrangements for setting up of the factory'. Since the financial institutions were not satisfied with that reply, the appellant approached the Chief Secretary again and the latter wrote a letter dated January 23, 1969, to the effect that the appellant 'will be entitled to exemption from U.P. Sales Tax for a period of three years from the date or going into production', the exemption being applicable to vanaspati sold, in the State, and in view of this assurance the appellant went ahead....
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....rds or conduct makes to another a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any preexisting relationship between the parties or not. It is not necessary, in order to attract the applicability of the doctrine of promissory estoppel, that the promisee, acting in reliance on the promise, should suffer any detriment. What is necessary is only that the promisee should have altered his position : the alteration of position need not involve any detriment to the promisee. The detriment in such a case is not some prejudice suffered by the promisee by acting on the promise, but the prejudice which would be caused to the promisee, if the promisor were allowed to go back on the promise. Where the ....
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....uld not be sufficient to exonerate the Government from the liability : the Government would have to show what precisely is the changed policy and also its reason and justification so that the court can judge for itself which way the public interest lies and what the equity of the case demands. It is only if the court is satisfied, on proper and adequate material placed by the Government that overriding public interest requires that the Government should not be held bound by the promise but should be free to act unfettered by it, that the court would refuse to enforce the promise against the Government. The court would insist on a highly rigorous standard of proof in the discharge of the Government's burden in this regard. But even where there is no such overriding public interest, it may still be competent to the Government to resile from the promise on giving reasonable notice which need not be a formal notice, giving the promisee a reasonable opportunity of resuming his position provided of course it is possible for the promisee to restore status quo ante. If, however, the promisee cannot resume his position, the promise would become final and irrevocable." Their Lordships of ....
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....as he then was, in the High Trees' case, "that a promise intended to be binding, intended to be acted on and in fact acted on, is binding so far as its terms properly apply" has, however, trade it abundantly clear that the principle of promissory estoppel cannot prevail in the teeth of an obligation or liability imposed by law. To say in other words, there is never an estoppel against law. This principle is also supported from the ratio of the following decisions, relied upon by the representative for the assessee Mr. G.P. Agarwalla: Shaik Imbrahim v. CIT, Continental Commercial Corpn. v. ITO, Mariam Aysha v. C.Ag.IT, Chat Mull Agarwal v. CIT and Ferozilal Jain v. Man Mall. 24. Having stated the law in the preceding paragraph, we now come to the provision of section 274(2) (assuming without admitting at this stage whether the said provision can be made use of by the revenue because the said provision stand omitted by the Taxation Laws (Amendment) Act, 1975, with effect from 1-4-1976 prior to the passing of the impugned penalty orders by the IAC for the assessment years 1958-59, 1960-61 and 1961-62), reading as under : "Notwithstanding anything contained in clause (iii) of sub....
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....ver, go against law, which is to the effect that the penalty orders for those three years if they are to be passed in accordance with the aforesaid settlement should be by an authority competent to levy the penalty for those three years. As we have brought out above, the IAC, in view of the provisions of section 274(2), relied upon by the parties before us, did not have the inherent jurisdiction to levy the penalties against the assessee under section 271(1)(c) the amount of income in respect of which the particulars are stated to be allegedly concealed or inaccurate particulars have been furnished in each of those three years, i.e., 1958-59, 1960-61 and 1961-62, was less than the sum of Rs. 25,000. Since the principle of promissory estoppel cannot apply against law, and the law must prevail, we have no other alternative but to hold that the imposition of the penalties by the IAC against the assessee under section 271(1)(c) for each of those three years, i.e., 1958-59, 1960-61 and 1961-62, is a nullity. It would not be correct, as has been argued by the senior departmental representative, Mr. A.K. Ghosh, that the question as to whether the IAC had the jurisdiction to levy these pen....
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....see without giving an opportunity of hearing to him. It is also a case where, though a show cause notice was issued by the ITO as to why penalty be not levied against the assessee under section 271(1)(c) the assessee never got an opportunity to show cause before him also, because on the date fixed, i.e., 28-2-1977, the ITO did not hear the cases on the plea that the file stood transferred to the IAC who was to hear the penalty cases. It is thus a case of levy of penalty by the IAC for the assessment year 1959-60 under section 271(1)(c) against the assessee without giving an opportunity to show cause against the penalty imposed. At the same time, it is not in dispute that if section 274(2) was applicable in the present case, then the IAC had the inherent jurisdiction to levy penalty because the amount of income (as determined by the IAC on reassessments) in respect of which particulars alleged to have been concealed or inaccurate particulars alleged to have been furnished for the accounting period relevant to the assessment year 1959-60 exceeded the sum of Rs. 25,000 that amount, as brought out in para 7 above, stood at Rs. 37,734. It is thus a case where the IAC did not lack inhere....
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....mental representative in support of his above stand. The first case is reported as CIT v. Wesman Engineering Co. That was a case of levy of penalty under section 140A(3). Their Lordships considered the provisions of section 140A(3) and observed that the said provisions of law did not cast any absolute duty on the ITO to levy a penalty on the failure of the assessee to pay the tax due on self-assessment within 30 days of furnishing his return. Under that provision, the assessee is given an opportunity of being heard before any penalty is imposed. This decision rather supports the assessee and not the revenue. The other decision relied on by the departmental representative, viz., Mool Chand Mahesh Chand v. CIT is distinguishable. It was a case of levy of penalty under section 273A and their Lordships of the Allahabad High Court, in view of the language used therein, have observed that the said provision did not provide for an opportunity of hearing to be given to the assessee who filed application for waiver or reduction of penalty imposed or imposable. That is not so in the case of levy of penalty under section 271(1)(c), as section 274(2) specifically states that no order imposing ....
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....essment year 1959-60 and the ITO for the assessment years 1958-59, 1960-61 and 1961-62 had validly assumed the jurisdiction and had the inherent jurisdiction to initiate the penalty proceedings, for the years concerned and because the illegality/irregularity, as brought out in paras 24 and 25 above, has intervened thereafter, we should set aside the penalty orders with the directions to the IAC and the ITO for the assessment year 1959-60 and the assessment years 1958-59, 1960-61 and 1961-62, respectively, to proceed from the stage interior to the intervention of the said illegality/irregularity: Guduthur Bros. v. ITO [1960] 40 ITR 298 (SC), CIT v. National Taj Traders [1980] 121 ITR 535 (SC) and Order of the Tribunal ('D' Bench Calcutta)-IT Appeal Nos. 4521 & 4522 (Cal.) of 1977-78, decided on 31-3-1979. 29. In reply, the representative for the assessee, Mr. G.P. Agarwalla, has argued that the decisions relied on by the departmental representative are distinguishable. In the case reported as Guduthur Bros. v. ITO the facts were that the ITO passed an order without giving any opportunity of being heard. The AAC set aside the said order and the same very ITO continued the proceedi....
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....all these three years had validly assumed the jurisdiction to levy the penalties against the assessee under section 271(1)(c). What do we find next ? We find that on the date fixed by him (the ITO) to hear the penalty proceedings pursuant to the show cause notices issued to the assessee, i.e., on 28-2-1977, he instead of proceeding with the penalty proceedings, declined to take any further action in the matter by not hearing the same on the ground that the files for the years concerned had since been transferred to the IAC who was, according to him, to levy the penalties. We have held above that the IAC, in view of the provisions of section 274(2), lacked inherent jurisdiction to proceed with the penalty proceedings, and so the illegality in the proceedings intervened at this stage. As far as the assessment year 1959-60 is concerned the IAC, in view of the provisions of section 274(2) had the jurisdiction, and he proceeded to levy the penalty against the assessee under section 271(1)(c) but committed an irregularity by levying penalty without giving an opportunity of hearing to the assessee as required by section 274(1). For this year, i.e., 1959-60, we find that the irregularity i....
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....her notice calling upon the appellants to appear before him, so that they might be given an opportunity of being heard. He also intimated that if no appearance was made, then he would proceed to determine the question of penalty, taking into consideration only the written statement which had been filed earlier. Before, however, the ITO could decide the case, the appellants filed a petition under article 226 of the Constitution for the issuance of the writs of prohibition or some other appropriate writ against the ITO. The matter went up to the Supreme Court and their Lordships of the Supreme Court upheld the action of the ITO. While so holding, their Lordships have observed that as the AAC pointed out only to an illegality, which vitiated the proceedings after they were lawfully initiated, the notice issued under section 28(1)(a) of the 1922 Act did not cease to be operative and it was open to the ITO to take up the matter at the point at which the illegality supervened and to correct his proceedings. The notice under section 28(1)(a) of the 1922 Act having remained still to be disposed of, the proceedings started after the order passed by the AAC could be described as during the c....
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....ng due opportunity for explaining the same. The Tribunal, therefore, allowed the appeals, vacated the Commissioner's order dated 6-8-1962 and remanded the case to him with the direction to dispose it of afresh after giving due opportunity to the respondent-assessee. 34. Feeling aggrieved by the Tribunal's aforesaid order dated 5-7-1965, the respondent sought to refer a set of six questions of law said to arise out of the said order to the Calcutta High Court but the Tribunal referred the following two questions only for the opinion of the High Court : "1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assumption of jurisdiction by the Commissioner under section 33B of the Indian Income-tax Act, 1922, was valid in law ?" "2. Whether, on the facts and in the circumstances of the case, the Tribunal acted properly by vacating the order of the Commissioner under section 33B of the said Act and in directing him to dispose of the proceedings under the said section afresh after giving due opportunity to the assessee ?" 35. The High Court by its judgment dated 9-3-1972 answered Question No. 1 in the application against the ....
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....tice dated 21-1-1969 under section 274(2) to the assessee-firm asking him to appear before him to show cause why penalty should not be imposed. The assessee thereupon challenged the validity and propriety of the said penalty proceedings and in particular the said notice by the IAC, Range-V, Calcutta. Before the High Court the point which came for consideration was that when a case was transferred by the Commissioner from one ITO to another, whether such transfer includes the case referred to the IAC of IT under section 274(2) read with section 271(1)(c) pending before him pursuant to the reference made to him by the ITO competent to make reference and whether when such reference has been made by a referring authority, the subsequent loss of jurisdiction by the referring authority affects jurisdiction of the referred authority and whether the Commissioner has power to transfer pending cases from one IAC to another. The matter was examined in the light of the proceedings under sections 123, 124, 127, 128, 129, 271(1)(c), 274(2) and 275 and their Lordships of the Calcutta High Court have held that after a reference has been made by a referring authority to another authority properly, ....
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.... in law against the proposed penalty under section 271(1)(c). 39. We next address ourselves to the arguments canvassed by the representative for the assessee, Mr. G.P. Agarwalla, that the penalty orders by the IAC for all the four years were bad in law because on the date when he passed the impugned penalty orders, i.e., 31-3-1977, in view of the omission of section 274(2) with effect from 1-4-1976 by the Taxation Laws (Amendment) Act, 1975, he had ceased to have jurisdiction or requisite power to pass the penalty orders. In support of this argument, the representative for the assessee Mr. G.P. Agarwalla has relied on the following decisions : Case reported in AIR 1943 Cal. 573, Case reported in AIR 1952 Bom. 365, Rayala Corpn. (P.) Ltd. v. Director of Investigation AIR 1970 SC 494 at page 502 col. 2, CIT v. Dhadi Sahu [1976] 105 ITR 56 at page 60 (Ori.), C. Ag. IT v. Smt. P. Parukutti Amma, Radheshyam Agarwalla v. CIT [1978] 113 ITR 196 (Ori.), CIT v. Om Sons [1979] 116 ITR 215 (All.), CIT v. Pearey Lal Radhey Raman [1979] 117 ITR 319 (All.), R. Abdul Azeez v. CIT [1981] 128 ITR 547 at page 559 (Kar.) and CIT v. Ramlal Vohra [1981] 129 ITR 473 (All.). These arguments of the rep....
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....n para 6 above and strongly urged that the said terms and conditions of the settlement has not been complied with in the present case. Further, levying of penalties afresh for these two years would be in violation of article 22 of the Constitution. These arguments of the assessee are strenuously controverted by the departmental representative. In this connection he has drawn our attention to the order of the Tribunal for these two years where the penalty orders have been set aside, in view of the aforesaid settlement between the Commissioner, W.B.V, Calcutta and the assessee and the fact that those penalty orders initially passed against the assessee were set aside at the instance of the assessee so that fresh penalty orders can be passed in accordance with the terms and conditions of the aforesaid settlement. The assessee cannot, therefore, turn round and take the above plea. 42. We have given consideration to the above arguments. Paras 11.1 and 11.2 of the terms and conditions of the aforesaid settlement read as under : "11.1 To give effect to the terms of this settlement the assessments of the assessees and those of the firms mentioned before will be reopened, rectified or....