COMMISSIONER OF INCOME TAX Vs. G A SAMANTHAKAMANI

JUDGEMENT

(1.) THIS judgment shall dispose of both the tax case references as a common question is involved. The following question was referred to us at the instance of the Revenue and under the directions of this court ;

(2.) A few facts first : The relevant assessment years for these two tax case references are 1973-74 and 1974-75. The Income-tax Officer levied a penalty of Rs. 1,799 and Rs. 1,902 for these two years, respectively, under Section 271(1)(a) of the Income-tax Act, 1961 (in short "the Act"), as the assessee had failed to file the returns in time. The assessee preferred appeals against these penalties. The Appellate Assistant Commissioner, however, found that the admitted taxes for the assessment years had not been paid up to June 2, 1978, when the appeals were presented by the assessee before him. The Appellate Assistant Commissioner also found that there were no extenuating circumstances for non-payment of taxes on the admitted income and, therefore, he rejected the appeals without admitting the same in terms of Section 249(4). The matters were taken to the Appellate Tribunal which found that since the provisions of Section 249(4) came into effect from October 1, 1975, the same could not apply to the appeals relating to the assessment years 1973-74 and 1974-75 as that section could not apply retrospectively. The Tribunal, therefore, set aside the order of the Appellate Assistant Commissioner and restored the appeals for disposal on the merits. The Department has now come before us on the basis of the referred question.

(3.) BEFORE we take up the rival contentions for consideration, it will be better to see the order of the Tribunal out of which the present references emanate. In its order, the Tribunal seems to have relied on the law laid down by the Supreme Court in Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh holding that all the rights of the parties get crystallised when a lis commences and no clog on a likely appeal could be put unless the law is made retrospectively expressly or by clear implication. It will be better to see that case first.