TMI Blog1995 (11) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter back to the Assessing Officer to comply with the provisions of section 274(2) of the Act. Counter and rejoinder affidavits have been exchanged and I have heard learned counsel for the petitioner, Shri Navin Sinha and Shri R. R. Agarwal, learned counsel for the respondents. The matter relates to the assessment year 1982-83 for which the petitioner's return of income was due to be filed on July 31, 1982, but was actually filed on February 6, 1984. There was thus a delay of 18 months and the Assessing Officer initiated proceedings for the levy of penalty under section 271(1)(a) of the Act. After giving the assessee an opportunity of hearing, a sum of Rs. 3,95,300 was levied as penalty by order dated July 13, 1989. The petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al has to refer a question of law arising out of its order for the opinion of the High Court. In the present writ petition, the petitioner's contention is that the remand of the case to the assessing authority is legally unjustified. If, therefore, a question of law arises from the order of the Tribunal, the petitioner has the alternative remedy of seeking a reference under section 256(1) or 256(2) of the Act and a writ petition is not maintainable. The respondents in their counter-affidavit have raised this plea as well. Learned counsel for the petitioner contended that the existence of an alternative remedy does not debar the jurisdiction of the High Court to entertain a petition under article 226 of the Constitution of India. It is tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. CIT [1989] 180 ITR 84, the Madhya Pradesh High Court held that the omission to obtain the prior approval of the Inspecting Assistant Commissioner, as required by the proviso to clause (iii) of section 271(1) of the Act, was a mere procedural irregularity which can be cured. In that case also, the Tribunal had set aside the penalty order under section 271(1)(c) of the Act and directed the Assessing Officer to pass a fresh order in accordance with law. It was held that the Tribunal was justified in doing so. In Guduthur Brothers v. ITO [1960] 40 ITR 298 (SC), penalty was levied under section 28(1)(a) of the Indian Income-tax Act, 1922 (corresponding to the present section 271(1)(a)). In that case, the penalty was imposed by the Income-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o that this procedural defect in the proceedings could be removed. Learned counsel for the petitioner placed reliance on CIT v. Metal Goods Manufacturing Co. (P.) Ltd. [1992] 197 ITR 230 (All) and CIT v. Bihari Lal Moti Lal [1993] 201 ITR 695 (All) in both of which this court held that the authority levying the penalty must have the jurisdiction to levy penalty on the date when the order levying the penalty is actually passed. These were cases where penalties were levied by the Inspecting Assistant Commissioner who by virtue of an amendment of law was not left with jurisdiction to do so. These authorities are thus on a different point. In the case before us, it is not the case of the petitioner that the Assistant Commissioner who levied t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the benefit of the order passed by the Commissioner of Income-tax (Appeals) giving the assessee some relief. It is true that the petitioner will not get that benefit, but he himself was not satisfied with that little relief and the Tribunal's order grants the petitioner an opportunity of reagitating the matter again even before the Deputy Commissioner under section 274(2) of the Act and he has all the rights of appeal and can make an attempt to convince the authorities that he had a reasonable cause for the entire period of delay. These are the hazards of litigation and have to be faced. The petitioner cannot make any legal grievance by the remand of the matter to the Assessing Officer by which the order passed by the Commissioner of Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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