Kunhalaumma and Others vs Income Tax Officer Calicut

Govindan Nair, J.—This appeal is by unsuccessful writ applicants who filed a petition before this court to set aside an order, exhibit P-8, imposing penalty for non-payment of certain amounts covered by two earlier penalty orders, exhibits P-1 and P-2.

Exhibits P-1 and P-2 were passed against the appellants for alleged concealment of income and for non-payment of advance tax u/s 18A of the Indian Income Tax Act, 1922. The question is whether a penalty can be imposed for non-payment of penalty. The submission of behalf of the appellants is that the provisions in the Indian Income Tax Act, 1922, which admittedly is the relevant statute, do not warrant such procedure. In this submission the appellants are supported by a decision of this court in M. M. Mathew v. Second Additional Income Tax Officer, Kottayam. There is yet another decision of this court in Padmanabha menon Krishna Menon v. Commissioner of Income Tax, where the same view has been taken.

Notwithstanding the above decisions of this court, counsel on behalf of the revenue has contended that the view taken in those decisions should be reconsidered because a different view has been expressed by the Allahabad High Court in the decision in Shri Chhotey Lal v. Income Tax Officer, C-Ward, Allahabad. The basis of the decision of the Allahabad High Court, as we read the judgment in that case, is the interpretation placed by that court on the decisions of the Supreme Court in C. A. Abraham v. Income Tax Officer, Kottayam, and in Commissioner of Income Tax v. Bhikaji Dadabhai & Co. With great respect we do not think that the interpretation placed by the Allahabad High Court on the decisions of the Supreme Court is correct. The Income Tax Act makes a distinction between a tax and a penalty. The word "assessment" used in the statute may, however, cover penalty proceedings as it does sometimes denote the whole procedure for imposing a liability of tax payable and that, we think is all that has been decided by the Supreme Court in the decision referred to.

We adhere to the view taken in M. M. Mathew v. Second Additional Income Tax Officer, Kottayam, and Padmanabha Menon Krishna Menon v. Commissioner of Income Tax and in that view, the order, exhibit P-8, cannot stand. We, therefore, allow this appeal and set aside the order, exhibit P-8. There will be no order as to costs.

Appeal allowed.