The Post Of Commissioner Of Income-Tax (Appeals) Is Equivalent Tothe Post Of Joint Secretary To The Government Of India And Byvirtue Of Various Pronouncements O v. Union Of India And 4 Others

Court No. - 46 Case :- WRIT TAX No. - 521 of 2023 Petitioner :- Ms. Shweta Punj Respondent :- Union Of India And 4 OthersCounsel for Petitioner :- Shashi Dhar ShuklaCounsel for Respondent :- A.S.G.I.,Gaurav Mahajan,Naveen Chandra Gupta Hon'ble Ashwani Kumar Mishra,J.Hon'ble Syed Aftab Husain Rizvi,J. Heard Sri S.K. Srivastava, learned counsel for the petitioner, SriGaurav Mahajan for the department and Sri N.C. Gupta, learnedcounsel for Union of India. Petitioner is an income tax assessee and has challenged theassessment orders passed against her in writ. It is not in issue thatthe order of assessment is subject to appeal under the Act and thatsuch an appeal in fact has been preferred which is pending, yet thewrit petition is pressed on the ground that the appellate authoritysince is not available in accordance with the statute, therefore, theappeal though instituted it cannot be heard. The argument advanced by the petitioner is strongly opposed bythe respondents. In order to appreciate the arguments raised, it would be necessaryto refer to some of the provisions of the Income-tax Act, 1961(hereinafter referred to as the 'Act of 1961'). An appeal lies againstthe order of assessment by virtue of Section 246A of the Act of1961. The language employed in Section 246A of the Act of 1961is that any assessee aggrieved by any of the orders stipulated in thesection can prefer an appeal to the Commissioner (Appeals). It isunder this provision of the statute that the appeals are filed againstthe orders of assessment, as has been done by the presentpetitioner. Section 2(16A) of the Act of 1961 defines Commissioner(Appeals) in following words:- "["Commissioner (Appeals)" means a person appointed to be aCommissioner of Income-tax (Appeals) under sub-section (1) of section Section 117 of the Act of 1961 provides that Central Governmentmay appoint such persons as it thinks fit to be income taxauthorities. Section 117 is reproduced hereinafter:- "117. (1) The Central Government may appoint such persons as it thinks fit tobe income-tax authorities. (2) Without prejudice to the provisions of sub-section (1), and subject to therules and orders of the Central Government regulating the conditions ofservice of persons in public services and posts, the Central Government mayauthorize the Board, or a [Principal Director General or] Director-General,a [Principal Chief Commissioner or] Chief Commissioner or a [PrincipalDirector or] Director or a [Principal Commissioner or] Commissioner toappoint income-tax authorities below the rank of an Assistant Commissioner[or Deputy Commissioner]. (3) Subject to the rules and orders of the Central Government regulating theconditions of service of persons in public services and posts, an income- taxauthority authorized in this behalf by the Board may appoint such executiveor ministerial staff as may be necessary to assist it in the execution of itsfunctions." Income tax authorities are then specified in Section 116 of the Actof 1961. Sub-section (c) of Section 116 is relevant for the presentpurposes and is extracted hereinafter:- (c) Directors of Income-tax or Commissioners of Income-tax orCommissioners of Income-tax (Appeals)," Sub-clause (c) of Section 116 of the Act of 1961 refers to a set ofincome tax authorities, namely, Directors of Income-tax orCommissioners of Income-tax or Commissioners of Income-tax(Appeals). From the statutory scheme, it is thus apparent thatCentral Government can appoint persons as income tax authoritieswhich includes the Commissioners of Income-tax (Appeals). It isnot in issue that Central Government has appointed officers asCommissioners of Income-tax (Appeals) in various offices of thedepartment. Income tax authorities are then specified in Section 116 of the Actof 1961. Sub-section (c) of Section 116 is relevant for the presentpurposes and is extracted hereinafter:- (c) Directors of Income-tax or Commissioners of Income-tax orCommissioners of Income-tax (Appeals)," Sub-clause (c) of Section 116 of the Act of 1961 refers to a set ofincome tax authorities, namely, Directors of Income-tax orCommissioners of Income-tax or Commissioners of Income-tax(Appeals). From the statutory scheme, it is thus apparent thatCentral Government can appoint persons as income tax authoritieswhich includes the Commissioners of Income-tax (Appeals). It isnot in issue that Central Government has appointed officers asCommissioners of Income-tax (Appeals) in various offices of thedepartment. The primary submission of the petitioner is that in fact no suchCommissioners of Income-tax (Appeals) have been appointed,inasmuch as the Act of 1961 contemplates creation of a separatecadre for Commissioners of Income-tax (Appeals), which has sofar not been constituted/created and therefore, the appointment ofCommissioner of Income-tax (Appeals) is not in accordance withlaw. The petitioner relies upon certain circulars of DOPT(Department of Personnel and Training) in order to contend that the post of Commissioner of Income-tax (Appeals) is equivalent tothe post of Joint Secretary to the Government of India and byvirtue of various pronouncements of the Supreme Court in Unionof India & Ors. vs. N.P. Dhamania & Ors. 1995 Suppl (1) SCC 1and other judgments, the authority competent to appoint suchCommissioner of Income-tax (Appeals) would be the AppointmentCommittee of the Cabinet. It is submitted that since theappointment orders of Commissioner of Income-tax (Appeals) arenot passed/approved by the Appointment Committee of theCabinet, therefore, the appointment made by Central Governmentof Commissioner of Income-tax (Appeals) is without an authority. We are not impressed by the above-noted arguments of thepetitioner for the reasons enumerated hereinafter:- (i) First and foremost, we find that the statute, i.e. the Act of 1961is a self contained code which clearly vests jurisdiction with theCentral Government to appoint such persons as it thinks fit to beincome tax authorities as are specified in Section 116 of the Act.The income tax authorities clearly includes Commissioners ofIncome-tax (Appeals) and, therefore, the Central Governmentwould have the jurisdiction to appoint an officer as Commissionerof Income-tax (Appeals). Officers belonging to the cadre of IndianRevenue Services have been appointed as Commissioner ofIncome-tax (Appeals). (ii) Our attention is not drawn to any express or implied provisioncontained in the Act of 1961 which may require import of theprocedure stipulated for appointment of Joint Secretary to theGovernment of India to the appointment procedure specified forthe Commissioner of Income-tax (Appeals). (iii) The argument of the petitioner proceeds on a factual and legalmisconception that the post of Commissioner of Income-tax(Appeals) since is in the same grade and is at par with the JointSecretary to the Government of India, therefore, the procedure forappointment which is specified under the Rules of Business forappointment of Joint Secretary to the Government of India wouldipso facto apply to the appointment of Commissioner of Income-tax (Appeals). This argument is not sustainable, inasmuch as theCommissioner of Income-tax (Appeals) is a separate and distinctpost from the post of Joint Secretary to the Government of Indiaand merely because the Commissioner of Income-tax (Appeals)draws the same scale of pay which is admissible to a JointSecretary to the Government of India, all provisions which areapplicable for appointing Joint Secretary to the Government of India would ipso facto get attracted in the matter of appointment ofCommissioner of Income-tax (Appeals). India would ipso facto get attracted in the matter of appointment ofCommissioner of Income-tax (Appeals). (iv) The appointment of Commissioner of Income-tax (Appeals) isregulated by the provisions of the Act of 1961 and procedure forappointment of Joint Secretary to the Government of India wouldnot get attracted by a ingenious process of reasoning unless there isa specific provision in law to indicate so. We do not find any suchstipulation in the Act of 1961, requiring grant of approval to theappointment of Commissioner of Income-tax (Appeals) by theAppointment Committee of the Cabinet. Even creation of aseparate cadre of officers for Commissioner of Income-tax(Appeals) does not appear to be essential or mandatory in thescheme of the Act of 1961. (v) The arguments raised on behalf of the petitioner apparently arefar-fetched and at best of academic importance otherwise which donot in any manner affect the right of an assessee to avail of theremedy of appeal created under the statute. In light of the deliberations and observations made above, we findthis petition to be lacking in substance. The right of the petitionerto avail the remedy of appeal against the order of assessment isamply protected. The writ petition, therefore, is dismissed. Order Date :- 20.7.2023RA