HAJI GHULAM HUSSAIN Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE question referred to this Court under Section 66 (1), Income-tax Act is as follows:

(2.) THE assessee in reply to a notice under Section 22 (2), Income-tax Act had filed his return, but he had not mentioned the status in which the return was being filed, nor had he given the date on which he had filed his return. THE form prescribed in the Indian Income-tax Act requires these facts to be also mentioned in the return that is to be filed by an assessee. THE Income-tax Officer, however, overlooked the defects and proceeded to complete the assessment. In the course of the assessment proceedings he discovered certain deliberate omissions made in the account books and he, therefore, issued a notice to the assessee to show cause why penalty under Section 28 (1) be not imposed on him. THE assessee furnished such explanations as he thought proper, but the Income-tax Officer was satisfied that the assessee had deliberately furnished inaccurate particulars of his income and he imposed a penalty of Rs. 3,000/- under Section 28 (1) (c), Indian Income-tax Act. Against the order passed by the Income-tax Officer an appeal was filed under Section 30. It was urged by the assessee that the Income-tax Officer could not impose a penalty under Section 28 (1) (c) as his return, being defective in the two particulars mentioned above, was not a return furnished in accordance with the provisions of the Act. THE Appellate Assistant Commissioner accepted this contention, but issued a notice to the assessee to show cause why a penalty should not be imposed under Section 28 (1) (a). Ultimately, on 14-4-1947, the Appellate Assistant Commissioner passed final orders in the appeal and he came to the conclusion that the question of imposing a penalty under Section 28 (1) (c) did not arise as no valid return had been filed, and imposed the same penalty of Rs. 3,000/- under Section 28 (1) (a) on the ground that the assessee had without reasonable cause failed to furnish the return of his total income which he was required to furnish by notice under Section 22. THEre was a further appeal to the Appellate Tribunal, which, however, dismissed the appeal and, on an application made by the assessee, has sent to us the question mentioned above for our decision.

(3.) LEARNED counsel has urged that, after the appeal had been disposed of, the Appellate Assistant Commissioner had no jurisdiction to start a fresh proceeding by issuing a fresh notice. This argument is, however, based on a misapprehension. We have seen the order of the Appellate Assistant Commissioner and we find that by the same order dated 14-4-1947, he finally disposed of the appeal and, though he changed the clause under which penalty was imposed and instead of imposing the penalty under Section 28 (1) (c) he held that the penalty should have been imposed under Section 28 (1) (a), yet he did not vary the amount and dismissed the appeal.