| SooperKanoon Citation | sooperkanoon.com/755263 |
| Subject | Direct Taxation |
| Court | Rajasthan High Court |
| Decided On | Sep-09-1993 |
| Case Number | D.B. Income-tax Reference No. 83 of 1982 |
| Judge | K.C. Agrawal, C.J. and; V.K. Singhal, J. |
| Reported in | [1994]207ITR155(Raj) |
| Acts | Income Tax Act, 1961 - Sections 2(4), 143(3), 147, 212(3) and 273 |
| Appellant | Commissioner of Income-tax |
| Respondent | Smt. Padam Kumari Surana |
| Appellant Advocate | G.S. Bapna, Adv. |
| Respondent Advocate | N.M. Ranka, Adv. |
Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - 60,437. simultaneously, proceedings under section 273(b) of the act were started during the reassessment proceedings for the assessee's failure to file proper advance tax estimates to be made in view of section 212(3) and pay tax accordingly. the question was whether section 217 of the act applies to reassessment proceedings as well.k.c. agrawal, c.j. 1. the income-tax appellate tribunal has referred under section 256(1) of the income-tax act, 1961 (for short 'the act'), the following question :'whether, on the facts and in the circumstances of the case, the tribunal was justified in holding that no penalty can be levied, as the income-tax officer initiated penal action in the course of reassessment proceedings in connection with the regular assessment as contemplated by section 273 of the act of 1961 ?'2. the original assessment was made on december 5, 1974, on a total income of rs. 10,471. thereafter, proceedings under section 147 of the income-tax act, 1961, were initiated in which the assessment was made on a total income of rs. 60,437. simultaneously, proceedings under section 273(b) of the act were started during the reassessment proceedings for the assessee's failure to file proper advance tax estimates to be made in view of section 212(3) and pay tax accordingly. the assessee contended before the income-tax officer that the penal proceedings could not be initiated in reassessment proceedings. he did not accept the arguments of the assessee and imposed penalty of rs. 3,000. on appeal, the appellate assistant commissioner quashed the penalty on the ground that penalty proceedings under section 273(b) could not be legally initiated in the course of reassessment proceedings. feeling aggrieved, the revenue went up in appeal to the income-tax appellate tribunal which upheld the order of the appellate assistant commissioner by finding that penalty could be imposed in regular assessment proceedings.3. counsel for the commissioner argued that section 273(a) is not confined to power of imposition of penalty to the regular assessment proceedings made under section 143 or 144 of the act. consequently, the income-tax appellate tribunal erred in holding that the penalty imposed was illegal.4. section 2(40) of the income-tax act defines the expression 'regular assessment' as meaning an assessment made under section 143 or section 144 of the act.5. section 273 empowers the assessing officer, in the course of any proceedings in connection with the regular assessment for any assessment year, to impose penalty for the reasons enumerated in clauses (a) and (b) of the said section. the argument of the assessee was that when the legislature conferred the power of levy of penalty only in regular proceedings, the said power cannot be utilised in proceedings different from those contemplated by the said provision. in other words, the submission was that reassessment proceedings cannot be kept at par and hence, no penalty could be levied in these proceedings.6. learned counsel for the assessee contended that the expression 'regular proceedings' having been defined in the act, it is that meaning which has to be given for the purposes of section 273(a). the settled principle, according to him, is that if an expression, has been defined in the act, that meaning alone has to be treated as exhaustive. section 2(40) reads as under :'2. (40) 'regular assessment' means the assessment made under section 143 or 144.'7. we find substance in the submission of the assessee's counsel and are unable to widen the meaning of the aforesaid expression by importing into it something not provided for. under this definition, only a proceeding which is taken under sections 143 and 144 is covered. the legislature, if it had desired to empower the income-tax authorities to impose penalty, even in reassessment proceedings, it could have provided for the same. the allahabad high court in cit v. smt. jagjit kaur : [1980]126itr540(all) held that the assessments made under section 147(a) read with section 143(3) were not 'regular assessments' within the meaning of section 273(b) read with section 212(3) and, therefore, the levy of penalty was not valid. we are in agreement with the aforesaid view and hold that we cannot read the words 'regular assessment' as occurring in section 273 as justifying the levy of penalty in the proceedings under section 147(b). the same view was taken by the punjab and haryana high court in smt kamla vati v. cit and by the patna high court in the case of cit v. ram chandra singh : [1976]104itr77(patna) .8. in cit v. mannalal nirmal kumar [1992] 198 itr 557 a question though different but having some resemblance, came up for consideration before this court. the question was whether section 217 of the act applies to reassessment proceedings as well. the view taken was that since interest was payable only in regular assessment, the same could not be applied to reassessment proceedings under section 147 of the act.9. consequently, the question referred is answered in favour of the assessee and against the revenue by holding that no penal action can be taken in the course of reassessment. the assessee would be entitled to get costs of rs. 400.
Judgment:K.C. Agrawal, C.J.
1. The Income-tax Appellate Tribunal has referred under Section 256(1) of the Income-tax Act, 1961 (for short 'the Act'), the following question :
'Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that no penalty can be levied, as the Income-tax Officer initiated penal action in the course of reassessment proceedings in connection with the regular assessment as contemplated by Section 273 of the Act of 1961 ?'
2. The original assessment was made on December 5, 1974, on a total income of Rs. 10,471. Thereafter, proceedings under Section 147 of the Income-tax Act, 1961, were initiated in which the assessment was made on a total income of Rs. 60,437. Simultaneously, proceedings under Section 273(b) of the Act were started during the reassessment proceedings for the assessee's failure to file proper advance tax estimates to be made in view of Section 212(3) and pay tax accordingly. The assessee contended before the Income-tax Officer that the penal proceedings could not be initiated in reassessment proceedings. He did not accept the arguments of the assessee and imposed penalty of Rs. 3,000. On appeal, the Appellate Assistant Commissioner quashed the penalty on the ground that penalty proceedings under Section 273(b) could not be legally initiated in the course of reassessment proceedings. Feeling aggrieved, the Revenue went up in appeal to the Income-tax Appellate Tribunal which upheld the order of the Appellate Assistant Commissioner by finding that penalty could be imposed in regular assessment proceedings.
3. Counsel for the Commissioner argued that Section 273(a) is not confined to power of imposition of penalty to the regular assessment proceedings made under Section 143 or 144 of the Act. Consequently, the Income-tax Appellate Tribunal erred in holding that the penalty imposed was illegal.
4. Section 2(40) of the Income-tax Act defines the expression 'regular assessment' as meaning an assessment made under Section 143 or Section 144 of the Act.
5. Section 273 empowers the Assessing Officer, in the course of any proceedings in connection with the regular assessment for any assessment year, to impose penalty for the reasons enumerated in clauses (a) and (b) of the said section. The argument of the assessee was that when the Legislature conferred the power of levy of penalty only in regular proceedings, the said power cannot be utilised in proceedings different from those contemplated by the said provision. In other words, the submission was that reassessment proceedings cannot be kept at par and hence, no penalty could be levied in these proceedings.
6. Learned counsel for the assessee contended that the expression 'regular proceedings' having been defined in the Act, it is that meaning which has to be given for the purposes of Section 273(a). The settled principle, according to him, is that if an expression, has been defined in the Act, that meaning alone has to be treated as exhaustive. Section 2(40) reads as under :
'2. (40) 'regular assessment' means the assessment made under Section 143 or 144.'
7. We find substance in the submission of the assessee's counsel and are unable to widen the meaning of the aforesaid expression by importing into it something not provided for. Under this definition, only a proceeding which is taken under sections 143 and 144 is covered. The Legislature, if it had desired to empower the income-tax authorities to impose penalty, even in reassessment proceedings, it could have provided for the same. The Allahabad High Court in CIT v. Smt. Jagjit Kaur : [1980]126ITR540(All) held that the assessments made under Section 147(a) read with Section 143(3) were not 'regular assessments' within the meaning of Section 273(b) read with Section 212(3) and, therefore, the levy of penalty was not valid. We are in agreement with the aforesaid view and hold that we cannot read the words 'regular assessment' as occurring in Section 273 as justifying the levy of penalty in the proceedings under Section 147(b). The same view was taken by the Punjab and Haryana High Court in Smt Kamla Vati v. CIT and by the Patna High Court in the case of CIT v. Ram Chandra Singh : [1976]104ITR77(Patna) .
8. In CIT v. Mannalal Nirmal Kumar [1992] 198 ITR 557 a question though different but having some resemblance, came up for consideration before this court. The question was whether Section 217 of the Act applies to reassessment proceedings as well. The view taken was that since interest was payable only in regular assessment, the same could not be applied to reassessment proceedings under Section 147 of the Act.
9. Consequently, the question referred is answered in favour of the assessee and against the Revenue by holding that no penal action can be taken in the course of reassessment. The assessee would be entitled to get costs of Rs. 400.