# Shyam Biri Works Pvt. Ltd v. Commissioner of Income Tax (Central), Kanpur

- **Citation:** (2003) 1 ILRA 53
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-12-03
- **Case number:** Income Tax Appeal No. 3 of 2001
- **Bench:** M. Katju, Yatindra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-biri-works-pvt-ltd-v-commissioner-of-income-tax-central-kanpur-40057
- **Pages:** 3

## Headnote

Income Tax Act 1963- S-273 (2) (a)-
Assessing officer initiated proceeding for
penalty- without recording the finding
regarding satisfactions whether can such
order be set aside on this grounds? Held-
"No".

Held- Para 5
http://www.allahabadhighcourt.nic.in
54 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
a similar provision requiring the reason
or satisfaction. Hence it has to be
inferred that Parliament never intended
that
before
initiating
penalty
proceedings and issuing notice under
section 273 the Assessing Officer must
record his reasons in writing for doing
so. Had that been so there would have
been a specific mention about it in
section 273 of the Act. We are, therefore,
of
the
opinion
that
although
the
Assessing Officer must have satisfaction
as required under section 273 of the Act,
it is not necessary for him to record that
satisfaction in writing before initiating
penalty proceedings under section 273 of
the Act. We are fortified in the view, we
are taking by the decision of the Calcutta
High Court in Becker Gray & Co. Ltd. Vs.
ITO, (1978) 112 ITR 503. For the
reasons given above this appeal has no
merit and it is dismissed. No orders as to
cost.
Case law discussed:
(2000) 246 I.T.R. 568
(1978) 112 I.F.R. 503

## Text

http://www.allahabadhighcourt.nic.in
1 All] Shyam Biri Works P. Ltd. Vs. Commissioner of Income Tax (Central), Kanpur
53
position, the principles laid down in the
English decisions referred to above must
be held to be applicable to the present
case.

We are unable to accept this line of
reasoning. Under S. 14 of the U.P.
General
Clauses
Act
the
State
Government may exercise the power
conferred on it by Sub-section 3,4 and 6
that is to say it can from time to time
make orders referring disputes to an
adjudicator and, whenever such an order
of reference is made to specify the time
within which the award is to be made.
This power to specify the time does not
and indeed cannot include a power to
extend the time already specified in an
earlier order. The legislative practice, as
evidenced by the provisions of the
different statutes referred to above is to
expressly confer the power of extension of
time, if and when the Legislature thinks
fit to do so. There is no question of any
inherent power of the Court and much
less of the Executive Government in this
behalf. Section 14 of the U.P. General
Clauses Act does not in terms, or by
necessary implication, give any such
power of extension of time of the State
Government
and,
therefore,
the
respondents can derive no support from
that Section."

From aforesaid it is clear that the
apex Court in the aforesaid case was
considering the question whether the State
Government will have power to extend
the time for an award. The aforesaid
judgement has no application in the facts
of the present case. In the present case
there is no question regarding any
extension of time of detention. The
question in the present case is the exercise
of power of detention under Section 281
of the U.P. Zamindari Abolition & Land
Reforms Act. The reliance placed by the
counsel for the petitioner on the aforesaid
case is clearly misplaced.

In view of what has been said above
we are of the view that there is no
prohibition in resorting the power of
detention under Section 281 of the U.P.
Zamindari Abolition & Land Reforms Act
in the present case since it is for different
arrears and for different citation. The
petitioner has not made out any case for
issue of writ of mandamus.

The writ petition lacks merit and is
dismissed summarily.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 3.12.2002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE YATINDRA SINGH, J.

Income Tax Appeal No. 3 of 2001

Shyam Biri Works Pvt. Ltd. ...Appellant
Versus
Commissioner of Income Tax (Central),
Kanpur

 ...Respondent

Counsel for the Appellant:
Sri R.P. Agrawal

Counsel for the Respondent:
Sri A.N. Mahajan

Income Tax Act 1963- S-273 (2) (a)-
Assessing officer initiated proceeding for
penalty- without recording the finding
regarding satisfactions whether can such
order be set aside on this grounds? Held-
"No".

Held- Para 5
http://www.allahabadhighcourt.nic.in
54 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
a similar provision requiring the reason
or satisfaction. Hence it has to be
inferred that Parliament never intended
that
before
initiating
penalty
proceedings and issuing notice under
section 273 the Assessing Officer must
record his reasons in writing for doing
so. Had that been so there would have
been a specific mention about it in
section 273 of the Act. We are, therefore,
of
the
opinion
that
although
the
Assessing Officer must have satisfaction
as required under section 273 of the Act,
it is not necessary for him to record that
satisfaction in writing before initiating
penalty proceedings under section 273 of
the Act. We are fortified in the view, we
are taking by the decision of the Calcutta
High Court in Becker Gray & Co. Ltd. Vs.
ITO, (1978) 112 ITR 503. For the
reasons given above this appeal has no
merit and it is dismissed. No orders as to
cost.
Case law discussed:
(2000) 246 I.T.R. 568
(1978) 112 I.F.R. 503

(Delivered by Hon'ble M. Katju, J.)

1. Heard Sri R.P. Agrawal, learned
counsel for the appellant and Sri A.N.
Mahajan for the department.

2. This appeal under section 260-A
of the Income Act has been filed against
the impugned order of the Income Tax
Appellate Tribunal dated 31.8.2000. The
case relates to penalty under section 273
(2)(a) of the Act for allegedly furnishing
false estimate of advance tax.

3. Only one point has been pressed
by the learned counsel for the appellant.
He submitted that before issuing notice
for initiating penalty proceedings under
section 273 (2) (a) of the Act the
Assessing Officer has not recorded his
satisfaction. Learned counsel has relied on
the decision of the Delhi High Court in
CIT Vs. Ram Commercial Enterprises
Limited, (2000) 246 ITR 568.

4. In the aforesaid decision the Delhi
High Court has observed that "it is the
Assessing Authority who has to form his
own opinion and record his satisfaction
before initiating the penalty proceedings."

5. With profound respect to the
Delhi High Court decision, we are unable
to agree. It may be noted that whenever
the Assessing Officer has to record his
satisfaction under the Income Tax Act, it
is specifically mentioned e.g. in 148 (2) of
the Act which states that "the Assessing
Officer before issuing any notice under
this section will record the reason for
doing so". Section 273 does not have a
similar provision requiring the reason or
satisfaction. Hence it has to be inferred
that Parliament never intended that before
initiating penalty proceedings and issuing
notice under section 273 the Assessing
Officer must record his reasons in writing
for doing so. Had that been so there
would have been a specific mention about
it in section 273 of the Act. We are,
therefore, of the opinion that although the
Assessing Officer must have satisfaction
as required under section 273 of the Act,
it is not necessary for him to record that
satisfaction in writing before initiating
penalty proceedings under section 273 of
the Act. We are fortified in the view, we
are taking by the decision of the Calcutta
High Court in Becker Gray & Co. Ltd.
Vs. ITO, (1978) 112 ITR 503. For the
reasons given above this appeal has no
merit and it is dismissed. No orders as to
cost.
---------
http://www.allahabadhighcourt.nic.in
1 All] Rajesh Sharma Vs. Advocate General U.P. High Court
55
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.12.2002

BEFORE
THE HON'BLE G.P. MATHUR, A.C.J.
THE HON'BLE Y.R. TRIPATHI, J.

Special Appeal No. 1038 of 2001

Rajesh Sharma

...Appellant
Versus
Advocate General U.P. High Court

 ...Respondents

Counsel for the Appellant:
Sri Rajesh Sharma
Sri P.C. Srivastava
Sri S.C. Tiwari

Counsel for the Respondents:
Sri Vinod Mishra, S.C.

Constitution of India, Act 226 Writ
Petition - Ad hoc appointee challenged
the action of state law officer or
remaining them from service undoubtly
the salary being given from the fund of
govt. - in absence of State Government -
No positive direction can be issued.

Held - Para 7 & 10

It would also be pertinent to point out
that any direction of this court in writ
petition
can
not
be
enforced
or
implemented in absence of the State of
Uttar Pradesh as a party to the writ
petition. A person removed from the
State law Officers Establishment has
right to appeal to the State Government,
and, therefore, the Advocate General
being the appointing authority is not the
final authority in the matter of removal
or dismissal of the employees of State
Law Officers Establishment and the State
Government has the power to reverse his
orders in appeal. Besides, it is the State
Government which allocates the budget
from which the employees of the State
Law Officers Establishment draw their
salaries and other allowances. Therefore,
no effective direction could be made and
order passed in the writ petition in
absence of State of Uttar Pradesh.

True, the Apex Court in various cases has
expressed its concern over increasing
disregard and by passing of statutory
rules in recruitment proceedings and this
case also appears to one of such cases
but we are constrained to observe that
the petitioner having neither impleaded
necessary and proper parties nor having
come up with correct facts squarely to
blame himself. To our mind, therefore it
was not a fit case for exercise of extraordinary writ jurisdiction under Article
226 of the Constitution.

(Delivered by Hon'ble Y.R. Tripathi, J.)

1. These special appeals raising
common questions of law and facts arise
out of the judgment and order dated 20th
August,2001 passed by learned Single
Judge of this court in Civil Misc. Writ
Petition No. 17432 of 1999 Rajesh
Sharma Versus Advocate General U.P.
and others, whereby he having partly
allowed the writ petition has set aside the
selection of Shri K.K. Shastri, respondent
no.2 to the writ petition, on the post of
Routine Grade clerk/Typist in the State
Law Officers Establishment and has given
a direction that the vacancy caused as a
consequence of setting aside selection of
Shri K.K. Shastri be filled from the next
candidate in the merit list and if the next
in the merit list is not available or does
not choose to take appointment, then from
next to next in the merit list.

2. Skeleton facts necessary to get
hand of the real controversy as also to
appreciate the discussions hereinafter are
that there were certain vacancies of
routine grade clerks/typist in the state law
officers
establishment
against
which