N.d. Ojha, Actg. C.J.
1. The following question has been referred to this court for its opinion by the Income-tax Appellate Tribunal, Allahabad :
'Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that Section 274(2) is procedural and not substantive thereby confirming the penalties imposed by the Income-tax Officer for the assessment years 1966 67 to 1969-70 ?'
2. The facts in a nutshell for deciding the aforesaid question are that the assessee submitted his returns in respect of the relevant assessment years before April 1, 1971. The assessments were completed on the basis of those returns. However, subsequently, the assessments were reopened and the asses-see filed revised returns in 1972. Revised assessments orders were passed in the same year 1972. Subsequently, penalty proceedings were initiated. Ordersimposing penalty were passed by the Income-tax Officer in the years 1974 and 1975. Section 274(2) of the Income-tax Act, 1961, had been amended with effect from April 1, 1971, by the Taxation Laws (Amendment) Act of 1970. The effect of this amendment was that the jurisdiction of the Inspecting Assistant Commissioner to impose penalty was taken away with effect from the date of the commencement of the Act, namely, April 1, 1971. The case of the assessee was that since the original returns were filed prior to April 1, 1971, the amendment of Section 274(2) of the Act which was in the nature of a procedural provision had no bearing on the case of the assessee and it is that law which was applicable at the time when the original returns were filed which would apply to the facts of the instant case. According to him, since at that time jurisdiction to impose penalty in a sum exceeding Rs. 1,000 vested only with the Inspecting Assistant Commissioner and not with the Income-tax Officer, it is the Inspecting Assistant Commissioner, who, notwithstanding the amendment of Section 274(2) of the Act by the Amendment Act of 1970, continued to have jurisdiction in the instant case and the orders of penalty having been passed not by him but by the Income-tax Officer were without jurisdiction.
3. Having heard, counsel for the parties, we find it difficult to agree with the submission made by counsel for the assessee. The effect of the amendment of Section 274(2) of the Act by the Amendment Act of 1970 was that jurisdiction to impose penalty up to a sum of Rs. 25,000 vested, with effect from April 1, 1971, in the Income-tax Officer and the Inspecting Assistant Commissioner was divested of this jurisdiction. The matter came up for consideration before a Division Bench of this court in CIT v. Om Sons : [1979]116ITR215(All) . It was, after construing the provisions of Section 274(2) of the Act as amended by the Amendment Act of 1970, held that if on the date when the Inspecting Assistant Commissioner passed his final order imposing penalty his jurisdiction to do so had been taken away by the amendment of Section 274(2), the order passed by him would be without jurisdiction. Counsel for the assessee has placed reliance on decisions of certain other High Courts where a contrary view has been taken. Since, however, we are bound by the decision of a Division Bench of this court in the case of Om Sons : [1979]116ITR215(All) , it is not possible for us to take a contrary view. At this place, we may point out that some other High Courts have followed the view taken by this court in the case of Om Sons : [1979]116ITR215(All) . It may further be pointed out that it is settled law that no one has a vested right in the forum. The assessee cannot claim to have a substantive right to have the penalty proceedings finalised by a particular officer notwithstanding the fact that the jurisdiction of that officer has by a statutory provision been taken away before final orders could be passed in the penalty proceedings.
4. Counsel for the assessee placed reliance on a decision of the SupremeCourt in Brij Mohan v. CIT : [1979]120ITR1(SC) . Suffice it to say that, so far asthis case is concerned, it was a case dealing with the quantum of penalty and not with the jurisdiction of an officer who was competent to pass an order of penalty. The said case, in our opinion, is clearly distinguishable.
5. In view of the foregoing discussion, our answer to the question referred to us is in the affirmative, in favour of the Department and against the assessee. The Department shall be entitled to its costs which is assessed at Rs. 250.