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Section 23 of the Wealth-tax Act, 1957 - Appellate Assistant Commissioner/Commissioner (Appeals) - Powers of - Assessment years 1969-70 to 1975-76 - Whether non-issue of show-cause notice by AAC before directing enhancement is a procedural irregularity which is a curable defect and not a legal infirmity making his order a nullity - Held, yes FACTS For the assessment years 1969-70 to 1975-76, the assessee filed the return late. On appeal, the AAC, while confirming the finding of absence of justification for late filing of return, directed re-computation of penalty on the basis of decision of the Supreme Court in CWT v.Suresh Seth [1981] 129 ITR 328, which had the effect of enhancement of penalty. However, no show-cause notice was given to the assessee. On appeal, the Tribunal allowed the assessee's appeal and the AAC was directed to give notice to show cause as required under section 23(5), and to pass orders. On reference: HELD A perusal of section 23(5) makes it clear that no order can be passed by the AAC which has the effect of enhancement of penalty without giving notice to the assessee to show cause. Admittedly, notice had not been given. Any order passed without notice is a nullity being in violation of the principles of natural justice which are embodied in the proviso itself. The appellate authority decided to consider the question of enhancement. In that view, the appeal did not come to an end. It was to go back to the stage where there was defect. Hence, the Tribunal was correct in setting aside the appellate order and remitting back the appeals for fresh disposal after giving notice to show cause. Thus, the non-issue of the notice to show c ause by the AAC did not make his order a nullity. CASE REFERRED TO CWT v. Suresh Seth [1981] 129 ITR 328 (SC). N. Paikray, R.P. Kar, A.N. Ray, M.K. Bodu and G. Naik for the Petitioner. S.C. Ray for the Respondent. JUDGMENT S.C. Mohapatra, J.-These references are at the instance of the assessee under section 27(1) of the Wealth-tax Act, 1957 ('the Act'). Common statement of the case has been made on the following question of law: "Whether, on the facts and in the circumstances of the case, the non-issue of the…

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