- (1.) THE Tribunal (Allahabad Bench) referred the following question relating to the asst. yr. 1972-73 for opinion of this Court: "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the IAC had no jurisdiction to impose any penalty under S. 271(1)(c) on or after 1st April, 1976 and, therefore, the penalty under S. 271(1)(c) imposed on 20th April, 1978 was without jurisdiction and in that view was justified in cancelling the penalty imposed by the IAC?"
(2.) IN this case penalty order was passed by the assessing authority on 20th April, 1978 i.e. subsequent to 1st April, 1976 when jurisdiction to levy penalty was taken away by virtue of the Taxation Laws (Amendment) Act, 1975. The question for consideration is whether date of penalty order is determinative of the jurisdiction. From the Tribunal's order dt. 23rd Aug., 1979 passed in this case, it clearly appears that the Tribunal relying on the case of CIT vs. Om Sons 1978 CTR (All) 407 : (1979) 116 ITR 215 (All) : TC 49R.1126 inter alia held that after 1st April, 1976 the IAC had ceased to have jurisdiction to levy the penalty. It is fairly conceded by counsel for the assessee that the decision in the case of Om Sons (supra) has been reversed in CIT vs. Dhadi Sahu (1992) 108 CTR (SC) 444 : (1993) 199 ITR 610 (SC) : TC 49R.1103, in which the Supreme Court held, reversing the decision of the High Court in the case of Om Sons (supra), that (it is) not the date on which the penalty order is passed but the date on which reference is made is germane for determining the jurisdiction of the IAC to levy the penalty. The Court held that if the IAC validly acquired jurisdiction to pass the order imposing penalty when reference was made then subsequent amendment, if any, made could not take away the jurisdiction already vested in the IAC. In the case at hand we do not know when the reference was made to IAC to levy the penalty. If reference was made before 1st April, 1976 when the amendment was made, then the IAC will continue to have the jurisdiction but if reference was made to the IAC after 1st April, 1976 then of course the IAC would cease to have jurisdiction to levy the penalty.
(3.) WITH these observations the matter is sent back to the Tribunal to record a clear finding as to when the reference was made in this case to the IAC to levy the penalty. If the reference preceded 1st April, 1976 when the amendment was made then the IAC would continue to have jurisdiction notwithstanding the subsequent amendment but if reference was made to the IAC after 1st April, 1976 then the view taken by the Tribunal that the IAC had no jurisdiction to levy the penalty would be correct. The reference is disposed of accordingly.;