MEENA, J. - (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. " Shri B. P. Agrawal has submitted that in an appeal against the order imposing a penalty, the appellate authority may confirm or cancel such an order or vary it so as either to enhance or reduce penalty and therefore, the Commissioner of Income Tax (Appeals) could not have directed the Assistant Commissioner concerned so as to allow an opportunity of cross-examination of Shri K. K. Dugar and therefore, according to Shri B. P. Agrawal, the impugned order was contrary to the provisions of Sec. 251 of the Act. Mr. G. S. Bafna, counsel for the respondents, invited our attention to Sec. 250 (4) of the Act which is reproduced as under: - "250 (4): The Appellate Assistant Commissioner or as the case may be, the Commissioner (Appeals) may, before disposing of any appeal, make such further enquiry as he thinks fit, of may direct the Income Tax Officer to make further enquiry and report the result of the same to the Appellate Assistant Commissioner or as the case may be, the Commissioner (Appeals)". Shri G. S. Bafna has submitted that once an appeal is filed, there are two stages when the appeal comes up for consideration. The first stage in this regard is before the disposal of the appeal, as is contemplated u/s 250 (4) of the Act, and he has submitted that according to the provisions of sub-section (4) of sec. 250 of the Act, the appellate authority before disposing of any appeal may make such further enquiry as he thinks fit or may direct the assessing officer to make further enquiry and report result of the same to the Dy. Commissioner (Appeals) or as the case may be the commissioner (Appeals ). Shri Bafna has further submitted that the stage which has been dealt with u/s 251 of the Act is the ultimate stage when the final order is required to be passed and therefore , the impugned order has to be examined on the anvil of the provisions contained in sec. 250 (4) of the Act rather than sec. 251 of the Act because sec. 251 of the Act comes at the stage when the appeal is finally disposed of. Shri Bafna has also submitted that here is the case in which the appellant himself had raised the grievance that he had not been granted an opportunity of cross-examination of Shri K. K. Dugar and the appellate authority, in the document Anx. R- 2/1 found that the rejection of the appellant's request to cross-examine Shri K. K. Dugar in connection with the penalty proceedings for concealment was not justified inasmuchas the assessment proceedings and concealment proceedings stand on two different independent footing. In the opinion of the Commissioner of Income Tax, the appellant should have been granted an opportunity to cross-examine Shri K. K. Dugar and as the same had not been done, the Commissioner of Income Tax (Appeals) found that this opportunity had been wrongly denied and therefore, in conformity with the provisions of sec. 250 (4) of the Act, before disposing of the appeal, he directed the Assessing Officer to make further enquiry and report the result of the same to the appellate authority and in doing so, he has acted in accordance with law and has granted an opportunity about which the grievance was raised by the appellant in the appeal before the Commissioner of Income Tax (Appeals) and therefore, the appellant cannot raise the grievance, if his own request has been conceded and order has been passed for affording opportunity to him to cross-examine Shri K. K. Dugar. It was also submitted by Shri G. S. Bafna that this order Anx. R-2/1 and the consequential letter which was sent by the Assistant Commissioner i. e. the assessing authority to the appellant, does not cause any prejudice, whatsoever, to the appellant and therefore , the writ petition itself was wholly misconcieved. We have given our thoughtful consideration to the submissions which have been made before us and we have also gone through the relevant provisions contained in sec. 250 (4) and 251 of the Act. It is clearly discernible from the scheme of the Act and the provisions contained in sections 250 and 251 of the Act that these two sections deal with appeal at different stages. Sec. 250 of the Act lays down the procedure in appeal and sec. 251 of the Act deals with the powers of the Deputy Commissioner (Appeals) or as the case may be , the Commissioner (Appeals ). The Legislature has taken care while laying down the procedure u/s 250 of the Act that in case the appellate authority before disposing of the appeal feels that some further enquiry is necessary, then, either the appellate authority itself can make an enquiry or it may ask the assessing officer to make further enquiry and report the result thereof. This provision has been inserted so as to avoid any further litigation and the multiplicity of proceedings. So far as Sec. 251 of the Act is concerned, in Sec. 251 (l) (b) of the Act it has been provided that in an appeal against the order imposing penalty, the appellate authority may confirm or cancel such order or vary it so as either to enhance or to reduce penalty. Such an order can be passed only at the final stage. Shri B. P. Agrawal's contention that since Sec. 251 (1) (b) of the Act says that an appeal against the order imposing penalty the appellate authority may confirm or cancel or vary the order, it cannot pass any order directing any further enquiry by the assessing officer and it cannot seek a report on this aspect of the matter from the assessing officer. Thus, the submission made by Shri B. P. Agrawal is not tenable for the simple reason that the question of confirming or cancelling or varying the order arises at the stage when the case is to be finally decided and while the appeal is pending and it is yet to be disposed of, if the appellate authority comes to the conclusion that any further enquiry is necessary he may himself make the enquiry or give direction in this regard to the assessing officer in conformity with sec. 250 (4) of the Act and therefore, on the plain and simple interpretation and the scheme of the Act , as per the provisions of section 250 and 251 of the Act , it is not made out that the appellate authority had no powers to issue the order which was impugned in the writ petition on the basis of order (Anx. R-2/1 ). Shri B. P. Agrawal has placed reliance on the following cases: - C. I. T. Vs. Rameshwar Das Ram Narain (1), a decision of the Allahabad High Court, Commissioner of Income Tax V. Eminent Enterprises (2), a decision of the Kerala High Court and Ramji Dass Ram Bilas vs. Commissioner of Income Tax (3), a decision of the Delhi High Court. We have gone through the aforesaid decisions and we are of the opinion that none of these cases is of any avail to the appellant for the simple reason that 107 ITR 710 and 106 CTR 44 are cases which had been decided with reference to sec. 251 and there was no consideration or any order under challenge which had been passed with reference to the exercise of powers of the appellate authority u/s 250 (4) of the Act. In 191 ITR 412, the directions given by the Tribunal were up held by Delhi High Court and we fail to understand as to how this case is relevant for the point on which arguments were raised before us. In our opinion , the law which has been laid down by Delhi High Court in 191 ITR 412 does not even touch the fringes of the controversy which is involved in the instant case. Apart from the legal position to which we have made reference here , it may also be mentioned that the appellant could not have had any legitimate grievance against the order which had been passed by the appellate authority in the instant case and we fully agree with the submission of Shri G. S. Bafna that this order (Anx. lo) does not cause any prejudice, what soever to the appellant and it does not give rise to any cause of action in his favour. In our opinion the impugned order does not give rise to any just cause for filing the writ petition particularly when we find that the impugned order seeks to meet the grievance raised by the present appellant himself in the appeal which he had filed before the Commissioner of the Income Tax (Appeals) and such an order could be lawfully passed by him in exercise of powers u/s 250 (4) of the Act.
(3.) NO other point has been argued before us. There is no merit in this appeal. No interference is called for with the view taken by the learned Single Judge. This appeal is dismissed with costs which is assessed at Rs. 5,000/- (Rs. five thousand only ). .;