HULEKAR AND SONS Vs. COMMISSIONER OF INCOME TAX
LAWS(KAR)-1966-6-2
HIGH COURT OF KARNATAKA
Decided on June 03,1966

HULEKAR AND SONS Appellant
VERSUS
COMMISSIONER OF INCOME-TAX, MYSORE Respondents


Referred Judgements :-

SHOP SIDDEGOWDA AND FAMILY VS. COMMISSIONER OF INCOME TAX [REFERRED TO]



Cited Judgements :-

COMMISSIONER OF WEALTH-TAX VS. UMRAO LAL [LAWS(ALL)-1982-4-88] [REFERRED TO]
ANANTHA NAGANNA CHETTY VS. COMMISSIONER OF INCOME TAX ANDHRA PRADESH HYERABAD [LAWS(APH)-1969-9-4] [REFERRED TO]
MANABENDRA NATH ROY VS. COMMISSIONER OF INCOME TAX [LAWS(CAL)-1970-9-37] [REFERRED TO]
COMMISSIONER OF INCOME TAX VS. M SREEDHARAN [LAWS(KER)-1987-6-5] [REFERRED TO]


JUDGEMENT

Somnath Iyer, J. - (1.)FOR the assessment year 1957-58, the assessee filed a return of income on October 12, 1957, showing an Income of Rs. 14,143. On November 21, 1957, he declared, through a revised return, an additional income of Rs. 61,244. Thereafter, on February 25, 1959, the Income-tax Officer initiated proceedings under sections 28(1)(c) and 28(3), for the imposition of a penalty for concealment. During the pendency of those proceedings, the assessee produced a statement on March 20, 1959.
(2.)THEREAFTER, the Income-tax Officer, who issued the notice under section 28, stood transferred and his successor made an order on December 15, 1961, imposing a penalty of Rs. 30,000. Before he did so, he did not again hear the assessee.
In the appeal presented to the Appellate Assistant Commissioner, the assessee was able to get rid of the order made by the Income-tax Officer on the ground that the Income-tax Officer who succeeded to the Income-tax Officer who had issued the notice did not again hear the assessee. But in the appeal preferred by the Income-tax Officer to the Appellate Tribunal, the view taken by the Appellate Assistant Commissioner did not commend itself, with the result that the Appellate Tribunal set aside the order of the Appellate Assistant Commissioner and remitted the appeal to him for disposal on merits which has not, so far, been done.

In this reference under section 66(1) of the Income-tax Act, 1922, we are asked to express our opinion on the question whether the successor Income-tax Officer did not have the competence to impose the penalty without affording to the assessee a fresh opportunity to make a representation against such imposition. The question referred to us reads :

"Whether, on the facts and in the circumstances of the case, and on a proper construction of sections 5(7C) and 28, the successor Income-tax Officer was competent to levy penalty without giving the assessee a fresh opportunity of being heard ?"

(3.)IN Shop Siddegowda and Family v. Commissioner of INcome-tax, this court expressed the view that where one INcome-tax Officer issues a notice under section 28(3), and the assessee submits his Explanation in writing, but does not choose to appear or does not ask for an opportunity to adduce evidence or address arguments, the successor INcome-tax Officer has the competence to impose a penalty after scrutiny and consideration of the written representation, without making available to the assessee a fresh opportunity of being heard, unless the assessee himself asks for such opportunity under the first proviso to section 5(7C).
According to the statement of the case submitted to us by the Tribunal, the assessee produced a statement in writing before the Income-tax Officer who stood transferred, and there was no oral representation made by the assessee. That is how we should understand what the Tribunal has stated in the course of its order in which it pointed out that the Tribunal was unable to find from the record anything to support the theory that there was some oral representation in addition to what was stated in writing.



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