Commissioner of Income-tax Vs. Mohan Lal Meliwal - Court Judgment

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. - on appeal, the judicial member of the tribunal considered the question with regard to the imposition of penalties on the merits as well as on legal grounds and the judicial member found that in view of the explanation to section 271(1)(c) of the income-tax act, the onus cast on the assessee was discharged and there was no fraud on his part. dhadi sahu [1995] 199 itr 610 wherein it was observed that the general principle is that a law which brings about a change in the forurn does not affect pending actions unless an intention to the contrary is clearly shown.v. k. singhal, j.1. the income-tax appellate tribunal has referred the following question of law arising out of its order dated august 30,1979, in respect of the assessment years 1967-68, 1968-69 and 1972-73 under section 256(2) of the income-tax act, 1961 :'whether, on the facts and in the circumstances of the case, the tribunal was right in holding that the inspecting assistant commissioner of income-tax had no jurisdiction to levy the penalties in all the cases after april 1, 1976 ?'2. the brief facts of the case are that in respect of the assessment years 1967-68 and 1968-69, the assessee filed returns disclosing the total income at rs. 13,861 and at rs. 16,774, respectively. according to the income-tax officer, income from liquor business for both the years and income from annuity and share income from mohanlal gopilal and m. s. kota for the assessment year 1968-69 had escaped assessment and, therefore, he issued notices under section 148 of the income-tax act.3. in pursuance of the notice as aforesaid, the assessee filed returns disclosing income from sop, share income from various firms and property income at rs. 800, rs. 6,255 and rs. 9,138, respectively, but the assessment was made at rs. 59,080. the penalty proceedings in respect of all the three assessment years were initiated. as the penalties leviable for all these years exceeded rs. 25,000, the income-tax officer made reference to the inspecting assistant commissioner, but imposed penalties on november 29, 1976, december 22, 1976, and march 15, 1977, for the assessment years 1967-68, 1968-69 and 1972-73, respectively. on appeal, the judicial member of the tribunal considered the question with regard to the imposition of penalties on the merits as well as on legal grounds and the judicial member found that in view of the explanation to section 271(1)(c) of the income-tax act, the onus cast on the assessee was discharged and there was no fraud on his part. he took the view that the penalty is not imposable on the merits for all the three years. the legal objection was also considered and he was of the opinion that the inspecting assistant commissioner who levied the penalty had no jurisdiction after april 1, 1976, to levy penalty when section 274(2) conferring powers on the inspecting assistant commissioner was deleted. the judicial member was of the view that it was the income-tax officer who could have levied the penalty. the accountant member has not given any decision so far as the merits of the case are concerned, but he agreed with the view taken by the judicial member on the point of jurisdiction of the inspecting assistant commissioner to levy the penalty.4. the submission of learned counsel for the revenue is that the jurisdiction of the inspecting assistant commissioner to impose penalty cannotbe taken away by an amendment which has not specifically divested the jurisdiction already acquired by him.5. the submission of learned counsel for the assessee is that the matter is now only an academip exercise as the judicial member has also decided the point on the merits.6. we have considered over the matter. the question with regard to the jurisdiction of the inspecting assistant commissioner to impose penalty has been considered by the apex court in the case of cit v. dhadi sahu [1995] 199 itr 610 wherein it was observed that the general principle is that a law which brings about a change in the forurn does not affect pending actions unless an intention to the contrary is clearly shown. one of the modes by which such an intention is shown is by making a provision for change over of proceedings from the court or the tribunal where they are pending to the court or tribunal which under the new law gets jurisdiction to try them. in that case, the legislative change in section 274(2) of the income-tax act was taken note of. jt was found that till april 1, 1971, the income-tax officer had no jurisdiction to impose penalty under section 271(1)(c) of the income-tax act, 1961, if the penalty exceeds rs. 1,000 and in such a case, he was bound to refer the matter to the inspecting assistant commissioner for imposing penalty. from april 1, 1971, the income-tax officer could impose penalty under section 271(1)(c) in respect of those cases where the income concealed was not more than rs. 25,000 and if the amount of such concealed income exceeded rs. 25,00.0, the income-tax officer was required to refer the case to the inspecting assistant commissioner for imposing penalty. in that case since the penalty imposable exceeded rs. 1,000 the matter was referred to the inspecting assistant commissioner who passed the penalty order on february 15, 1973. a question was raised that since the amendment has been brought under section 274(2) with effect from april 1, 1971, therefore, the inspecting assistant commissioner has no jurisdiction. it was held by the apex court that the reference was validly made by the income-tax officer before april 1, 1971, and the amendment under section 274 does not divest the inspecting assistant commissioner of his validly acquired jurisdiction. in the light of the above decision the relevant point to be seen is the date of making the reference by the income-tax officer to the inspecting assistant commissioner. the deletion of section 274(2), with effect from april 1, 1976, cannot be considered to have taken away his jurisdiction to levy penalty if the reference was validly made. in these circumstances,we are of the opinion that the tribunal was not right in holding that the inspecting assistant commissioner has no jurisdiction to levy penalty for all these years after april 1, 1976.7. another dispute which was raised by learned counsel for the assessee is that the judicial member has passed an order even on the merits and found that no offence has been committed and, therefore, the matter could not be sent back to the tribunal. we are afraid the order passed by the tribunal cannot be said to be the judgment by the tribunal in accordance with the provisions of section 254/255 of the income-tax act. the judgment has to be given by both the members and if one of the members has not given the judgment, it cannot be considered to be an order passed in accordance with the provisions of section 254/255.8. in these circumstances, the matter is sent back to the tribunal to take into consideration the date on which the matter was referred by the income-tax officer to the inspecting assistant commissioner and if the said date is prior to april 1, 1976, then the order of the inspecting assistant commissioner will not be considered to be without jurisdiction. in case the reference has not been made prior to april 1, 1976, the tribunal will hear the appeal afresh ignoring the view which the judicial member has already taken and will provide opportunity to both the parties and will decide the matter in accordance with law.