ARIJIT PASAYAT, C. J. (ORAL)

( 1 ) ON being moved under Section 256 (1 ) of the Income-tax Act, 1961 ( the Act forshort) the Income-tax Appellate Tribunal, Delhi Bench-A, ( the Tribunal for short) hasreferred the following question for opinion of this Court:

"whether on the facts and in the circumstances of the case, the Tribunal isright in law in cancelling the penalty of Rs. 55. 000. 00 imposed by the Inspectingassistant Commissioner by his order dated 31. 3. 1979, as without jurisdictionand invalid in law, after the deletion of Section 274 (2) of the Income-tax Actby Taxation Laws (Amendment) Act, 1975 with effect from 1-4-1976 ?"

( 2 ) THE factual position, which is almost undisputed, so far as relevant for thepurpose of the adjudication, is as follows: For the assessment year 1973-74, beforethe completion of assessment, by order dated 24/09/1976, notice wasissued by the Assessing Officer under Section 274 read with 271 (1) (C) of the Act on 30/03/1976 for alleged concealment of income by the assessee. subsequently,since the penalty leviable exceeded Rs. 25. 000. 00, the Income-tax Officer referred thematter to the Inspecting Assistant Commissioner ("iac" for short ) on 26/03/1979 under Section 274 (2) of the Act and the IAC, after hearing the assessee on 30/03/1979 passed the order imposing penalty on 31/03/1979. Thepenalty was levied with reference to the additions sustained by the Tribunal amountingto Rs. 55,011 in the appeal relating to quantum in assessment. At this juncture wemay note that by Taxation Laws (Amendment) Act, 1975, sub-section (2) of Section274 was deleted with effect from 1/04/1976. Section 274, as it stood as on 1/04/1971 and after the deletion of sub-section 2 is as under:

AS on 1/04/1971 (1) No order imposing a penalty under this Chapter shall be made unless theassessee has been heard, or has been given a reasonable opportunity ofbeing heard. (2) Notwithstanding anything contained in clause (iii) of sub-section (1) ofsection 271, if in a case falling under clause (e) of that sub-section, theamount of income (as determined by the Income-tax Officer on assessment)in respect of which the particulars have been concealed or inaccurateparticulars have been furnished exceeds a sum of twenty five thousandrupees, the Income-tax Officer shall refer the case to Inspecting Assistantcommissioner who shall, for the purpose have all the powers conferredunder this Chapter for the imposition of penalty. (3) An Appellate Assistant Commissioner on making an order under thischapter imposing a penalty, shall forthwith send a copy of the same to theincome-tax Officer. As on 1/04/1976. (1) No order imposing a penalty under this chapter shall be made unless theassessee has been heard or has been given a reasonable opportunity ofbeing heard. (3) An Appellate Assistant commissioner on making an order under thischapter imposing a penalty, shall forthwith send a copy of the same to theincome-tax Officer.

( 3 ) LEARNED counsel for the Revenue characterised the deletion as a change offorum and to be procedural and assailed order of the Tribunal. There is no appearanceon behalf of the assessee in spite of service of notice.

( 4 ) IT is true that no litigant has any vested right in the matter of procedural law. Butwhere the question is one of change of forum, it ceases to be a question of procedureonly. Forum of appeal or proceedings is a vested right as opposed to pure procedureto be followed before a particular forum. Right becomes vested when proceedingsare initiated in the Tribunal or Court of first instance, and unless the Legislature has,by express words or by necessary implication, clearly so indicated, that vested rightwill continue in spite of change of jurisdiction of different Tribunals or forums. (See:hoosein Kasam Dada (L) Ltd. Vs. State of M. P. AIR 1953 SC 221, State ofbombay Vs. Supreme General Films Exchange Ltd. AIR 1960 SC 980, Vithalbhainaranbhai Patel Vs. CSI AIR 1967 SC 344 and Ramesh Singh Vs. Cinto Deviair 19

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