Deputy Commissioner vs N.M. Abdulsalam

K.S. Paripoornan, J.—The Revenue is the petitioner herein. The respondent is an assesses under the Agricultural Income Tax Act, 1950. We are concerned with the assessment year 1979-80. For non-payment of the admitted tax, by order dated November 6, 1984, the assessing authority imposed a penalty of Rs. 7,847 on the assessed u/s 17A(3) of the Agricultural Income Tax Act. In appeal, the Appellate Assistant Commissioner cancelled the penalty. In the second appeal by the Revenue, the Appellate Tribunal held that the Appellate Assistant Commissioner has no jurisdiction to entertain the appeal and the order assailed before the Tribunal is totally wanting in jurisdiction. Having held so, the Appellate Tribunal dismissed the appeal filed by the Revenue. The Revenue has come up in revision.

We heard counsel for the Revenue, Senior Government Pleader, Sri V. C. James, as also counsel for respondent/assessee, Mr. Jose Joseph. It is true that against an order levying penalty u/s 17A(3) of the Agricultural Income Tax Act, an appeal is not maintainable before the Appellate Assistant Commissioner u/s 31 of the Act. But, the Appellate Assistant Commissioner did entertain the appeal and cancelled the penalty. He passed an order in exercise of the powers vested in him as the Appellate Assistant Commissioner in an appeal preferred before him. In such a case, a second appeal is maintainable before the Appellate Tribunal.

We are of the view that the Tribunal was in error in holding that the appeal is not maintainable, We concur with the Tribunal that the appeal filed before the Appellate Assistant Commissioner is incompetent and the declaration of the Appellate Tribunal on that score is justified in law. In the circumstances, the Tribunal should have allowed the appeal filed by the Revenue by passing an appropriate declaration that the order of the Appellate Assistant Commissioner is illegal and unauthorised. The appeal filed by the Revenue should not have been dismissed. It should have been allowed. We hold so.

The Appellate Tribunal is directed to pass appropriate orders in conformity with the judgment herein. We remit the matter to the Appellate Tribunal for the said purpose. The revision is allowed to the above extent.