Full Judgment Text
[NONREPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2704 OF 2022
Late Shri Gyan Chand Jain through LR …Appellant
Versus
Commissioner of Income TaxI …Respondent
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 29.03.2016 passed by the High
Court of Judicature for Rajasthan, Jaipur in D.B. Income
Signature Not Verified
Tax Appeal No.33 of 2014 by which the High Court has
Digitally signed by
DEEPAK SINGH
Date: 2022.04.19
17:38:17 IST
Reason:
allowed the said appeal preferred by the Revenue and has
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set aside the order passed by the Income Tax Appellate
Tribunal (hereinafter referred to as the ‘ITAT’) deleting the
penalty under Section 271(1)(c) of the Income Tax Act (for
short ‘the Act’), the assessee has preferred the present
appeal.
2. It is mainly submitted on behalf of the appellant that in
view of the CBDT (Central Board of Direct Taxes) Circular
No.21 of 2015 dated 10.12.2015 the appeal preferred by the
Revenue was not maintainable. It is the case on behalf of
the appellant that in view of the aforesaid circular no appeal
can be filed by the Department in any High Court, for non
payment of taxes, where the tax effect is less than
Rs.20,00,000/. It is the case on behalf of the appellant
that in view of the order passed by the CIT(A) and in view of
the subsequent demand, the penalty amount was reduced to
Rs.6,00,000/ (approximately) and therefore when the tax
effect would be less than Rs.20,00,000/, in view of the
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CBDT Circular dated 10.12.2015 the appeal preferred by the
Revenue before the High Court was not maintainable.
2.1 Learned counsel appearing on behalf of the appellant
has also made some submissions on merits on the
jurisdiction of the Additional Commissioner of Income Tax.
However considering the definitions contained in Section
2(28C) read with Section 274(2) of the Income Tax Act, ‘Joint
Commissioner’ means a person appointed to the post of
Joint Commissioner of Income Tax and includes Additional
Commissioner of Income Tax and in the present case the
approval of the Additional Commissioner of Income Tax was
obtained, we see no reason to interfere with the findings
recorded by the High Court on merits on the powers of the
Additional Commissioner to grant the approval sought by
the AO for imposing penalty under Section 271(1)(c) of the
Income Tax Act.
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2.2 Now so far as the primary submission on behalf of the
appellant assessee that as the penalty amount was
substantially reduced to Rs.6 lakhs and even the
subsequent demand notice was for an amount of Rs.6 lakhs
(approximately) only and therefore in view of the CBDT
Circular dated 10.12.2015 the tax effect being lower than
the permissible limit to prefer the appeal before the High
Court and therefore the appeal before the High Court was
not maintainable is concerned, at the outset it is required to
be noted that what was assailed by the Revenue was the
penalty amounting to Rs.29,02,743/ and not the penalty
reduced by the CIT(A). Before the Tribunal, both the
Revenue, as well as the assessee, preferred the appeals and
the entire penalty amounting to Rs.29,02,743/ was an
issue before the Tribunal as well as before the High Court.
The subsequent reduction in penalty in view of the
subsequent order cannot oust the jurisdiction. What is
required to be considered is what was under challenge
before the Tribunal as well as the High Court. At the cost of
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repetition, it is observed that what was challenged by the
Revenue was the penalty amounting to Rs.29,02,743/ and
not the subsequent reduction of penalty by the CIT(A). The
aforesaid aspect has been dealt with by the High Court in
paragraph 17 of the impugned judgment and order. We are
in complete agreement with the view taken by the High
Court. Therefore, it cannot be said that the appeal before
the High Court at the instance of the Revenue challenging
the order passed by the ITAT was not maintainable in view
of CBDT circular dated 10.12.2015.
4. In view of the above and for the reasons stated above
there is no substance in the present appeal and the same
deserves to be dismissed and is accordingly dismissed. No
costs.
...…………………………….J.
[M.R. SHAH]
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………………………………J.
[B.V. NAGARATHNA]
NEW DELHI;
APRIL 19, 2022
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