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Income‑tax Reference. No. 740 of 1972, decided on 13th October, 1983.

‑‑‑ After appellate Court has passed an order, order of original Court, , held, merges into that.

1967 P T D 622 and 1980 P T D 26 ref.

‑‑ S. 46(1)‑Default‑Penalty‑Commissioner of Income‑tax passing order granting instalment thus completely changing time schedule fixed by Income‑tax Officer‑Held, assessee cannot be treated as defaul ter and no penalty could be imposed in circumstances.

1967 PTD 622 and 1980 PTD 26 ref.

Sheikh Raider for Appellant.

I. N. Pasha for Respondent.

Date of hearing : 28th September, 1983.

.‑The Department has filed this application under section 66(11) of the Income‑tax Act raising the following question : ‑

"Whether on the facts and in the circumstances of the case the Income tax Appellate Tribunal was justified in cancelling the penalty of Rs. 1,788, imposed by the Income‑tax Officer under section 46(1) of the Income‑tax Act"

For the assessment year 1958‑59 demand of Rs. 11,928 was created against the respondent. As payment was not made a reminder was issued to clear the demand by 29‑9‑1969. The respondent failed to pay the amount within the time specified, and, therefore, the Income‑tax Officer imposed penalty of 15 % on the outstanding demand by order dated 16‑2‑1961. The respondent filed an appeal before the Income‑tax Appellate Tribunal inter alia alleging that he bad filed an application before the Commissioner on 8‑2‑1962 for grant of instalment for payment of the amount and the order imposing penalty was passed without tailing these facts into considera tion and without waiting for direction of the Commissioner. It was further stated that the Commissioner by order dated 9‑3‑1961, allowed payment of instalments, and, therefore, he could not be treated in default on 16‑2‑1961.

At the outset Mr. I.N. Pasha, has referred to Bewani Textile Mill' case 1967 P T D 622 and Azam Industries Ltd.'s case 1980 P T D 126. The view that has consistently been prevailing and has been followed is that after the Appellate Court has passed an order, the order of the original Court is merged into it. Further in matters where the Commissioner has passed an order granting instalment, the time schedule fixed by the Income‑tax Officer is completely changed, and therefore, the assessee cannot be treated as a t defaulter and no penalty can be imposed. In view of the aforestated autho rities, the learned counsel Mr. Sheikh Haider has not disputed the legal position. He has, however, frankly pointed out that the imposition of penalty at Rs. 15 % by the Income‑tax Officer was not proper as at the first instance it should have been 5 %. In view of these facts and circumstances of the case, our answer to the reference is in the affirmative.

M. Z. M. Reference answered in affirmative.

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