Case Law Details
CA Sandeep Kanoi
In this case Income tax Officer has imposed penalty under section 271B exceeding Rs. 10,000 without prior approval of Joint Commissioner.
Learned Counsel for the Assessee submitted that the order imposing penalty does not disclose that prior approval of the Joint Commissioner was obtained in either of the two cases. He drew our attention to a judgment of this Court in the case of AWT No. 4 of 2003 and AWT No. 5 of 2003, dated 30-9-2013 (Indrajit Banerjee v. CWT to which one of us (Girish Chandra Gupta, J.) was a party wherein the following view was taken considering various judgments cited at the Bar :—
“The Income Tax Officer had no jurisdiction to impose penalty exceeding a sum of Rs. 10,000/- except with the approval of the Deputy Commissioner. Mr. Agarwal submitted that it is a question of fact. We are unable to accept this submission. It was the obligation of the Income Tax Officer to indicate in his order that he passed the order after obtaining requisite approval. Since the order passed by the Income Tax Officer does not contain the requisite recital, it has to be held that no such approval was obtained. The order itself is incompetent. An incompetent order is a nullity and the point as regards nullity can be taken at any stage. It can even be taken at the stage of execution. Even if the orders imposing penalty were not set aside by us, which we propose to do, the order could not have been executed. Therefore, the third question is answered in the affirmative.”
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