COMMISSIONER OF INCOME TAX Vs. GODAVARIDEVI SARAF SMT

JUDGEMENT

(1.) AT the instance of the revenue the following question is referred to us for our determination :

(2.) THE assessee submitted a return of income for the assessment year 1968 -69 declaring therein income of Rs. 29,038 on August 30, 1969. Having regard to the provisions of section 140A(1) of the Income -tax Act, 1961 (hereinafter referred to as 'the Act'), she was required to make self -assessment by September 29, 1969. The amount of tax payable by way of assessment was Rs. 4,342. The assessee did not pay the said tax till the Income -tax Officer made assessment for the assessment year 1968 -69 by his order dated August 31, 1971. As no tax was paid by way of self -assessment, an opportunity to show cause why a penalty should not be imposed under section 140A(3) was given to the assessee. She, however, did not offer any explanation. By his order dated October 22, 1973, passed under section 140A(3), the Income -tax Officer levied a penalty of Rs. 800.

(3.) IN a second appeal before the Tribunal, the attention of the Tribunal was drawn to the decision of the Madras High Court in the case of A.M. Sali Maricar : [1973]90ITR116(Mad) , wherein that High Court held that section 140A(3) was violative of the provisions of article 19(1)(f) of the Constitution and the said section was struck down by that High Court as being unconstitutional. The Tribunal had no jurisdiction to go into the question of vires of particular provisions under the Act and proceeded on the footing that section 140A(3) was non -existent in view of the decision of the Madras High Court and cancelled the order of penalty. It, however, gave an alternative finding that in case the section was treated as in existence, then the order of penalty as varied by the Appellate Assistant Commissioner was to be confirmed. It is from this order of the Tribunal that the above question is referred to us at the instance of the revenue.