SILVER AND ART PALACE Vs. COMMISSIONER OF INCOME

JUDGEMENT

(1.) THIS special appeal is directed against the judgment and order dated 11. 11. 1992 passed by the learned single Judge in S. B. Civil Writ Petition No 3093/1992 whereby the writ petition was dismissed. The appellant, in the writ petition had challenged the order (Annexure-10) passed by the Assistant Commissioner of Income Tax, Central Circle-II, Jaipur, on 13. 4. 1992, directing the appellant to attend his office on 20. 4. 1992 at 10 a. m. for availing opportunity of cross-examination. We find from the record that this order (Annexure-10) against which the present writ petition was filed, is a consequential order and the basic order is Annexure R-2/1, dated 31. 3. 1992 which has been placed on record by the respondents. There is no dispute that the appeal which had been filed by the present appellant against the concealment penalty imposed upon the appellant. was pending at the time when the order Anx. R-2/1 was passed. By this order, Anx. R-2/1 the Commissioner of Income Tax (Appeals) had directed the Assistant Commissioner of Income Tax, Central Circle-II, Jaipur to give an opportunity to the appellant to cross-examine Shri K. K. Dugar and if he wanted to have any clarification vis-a-vis the points that emerge during the said cross-examination he may act accordingly, and thereafter, a copy of the statement so recorded along with his comments, if any, may be forwarded to the office of the Commissioner of Income Tax (Appeals) by 20. 4. 92 positively so that appeal against concealment penalty may be considered on a correct footing. It is in pursuance of this order Anx. R-2/1 dated 31. 3. 1992 that the Assistant Commissioner, Income Tax, Central Circle II Jaipur sent the letter dt. 13. 4. 1992 (Anx. l0) mentioning therein that as per the direction of the Commissioner of Income Tax (Appeals) Raj!-a notice u/s 131 was issued to Shri K. K. Dugar to attend office on 9. 4. 1992 and the copy of the said notice was also served upon the present appellant so as to allow it to avail opportunity for cross- examination of Shri K. K. Dugar. It had also been mentioned in this document Anx. 10 that on the appointed date i. e. 9. 4. 1992 none attended office nor any application for adjournment was filed and therefore, he was directed to attend office on 20. 4. 1992 as has already been stated. The writ petition filed against the above referred order was rejected by the learned Single Judge by his judgment and order dated 11. 11. 1992 and against this judgment and order of the learned Single Judge, the appellant has come in appeal.

(2.) THE main contention of the learned counsel for the appellant is that such an order could not be passed by the Commissioner of Income Tax in the appeal and therefore, the document (Anx. 10) was also invalid. He has invited our attention to the provisions of the Income Tax Act, 1961 and has placed reliance on Sec. 251 (1) of that Act and the same is reproduced as under: - "sec. 251. Powers of the Appellate Assistant Commissioner (or as the case may be the Commissioner (Appeals); (1) In disponsing of an appeal the Appellate Assistant Commissioner or as the case may be, the Commissioner (Appeals) shall have the following powers: - (a) In an appeal against an order of assessment, he may confirm, reduce, enhance or annul the assessment , or he may set aside the assessment and refer the case back to the Income Tax Officer for making a fresh assessment in accordance with the directions given by the Appellate Asstt. Commissioner or as the case may be, the Commissioner (Appeals) and after making such further enquiry as may be necessary, and the Income Tax Officer shall thereupon proceed to make such fresh assessment and determine, where necessary, the amount of tax payable on the basis of such fresh assessment. ' (b) In an appeal against an order imposing a penalty, he may confirm or cancel such order or vary it so as either to enhance or reduce the penalty; (c) in any other case, he may pass such orders in the appeal as he thinks fit. "

(3.) NO other point has been argued before us.