2003 (11) TMI 64 - HC - Income Tax

Application for waiver of penalty under section 271(1)(c)(iii) and interest payable under the said Act. The said application was filed under sub-section (1) of section 273A of the Act. - The fact that the conditions mentioned in sub-section (4) of section 273A have not been satisfied is not a relevant factor in these circumstances for refusing exercise of power under sub-section (1) - Moreover, the fact that the Commissioner asked for approval of the Board shows that he also was satisfied that the pre-conditions had been fulfilled in the case - The penalty charged is waived and the waiver petition is allowed

Summary

Issues:
- Appeal against judgment and order passed by a single judge
- Application for waiver of penalty and interest under section 273A of the Income-tax Act
- Rejection of the waiver application by the Commissioner of Income-tax
- Filing of rectification application and subsequent rejection
- Interpretation of sub-sections (1) and (4) of section 273A
- Appealability of orders under section 154 and section 273A

Analysis:
The appeal was filed against a judgment and order passed by a single judge in a case involving the late assessee's undisclosed investments, leading to the legal heir filing returns for specific assessment years and paying taxes accordingly. Subsequently, an application for waiver of penalty and interest under section 273A of the Income-tax Act was made by the legal heir. The Commissioner of Income-tax sought approval for waiver of penalty, but the Chief Commissioner denied approval citing non-satisfaction of genuine hardship requirement under sub-section (4) of section 273A. The Commissioner rejected the waiver application, leading to a rectification application being filed and subsequently rejected. The appellant contended that the orders were not appealable, as per sections 253 and 246 of the Income-tax Act, emphasizing that the order under section 273A was not appealable.

The appellant further argued that sub-section (4) of section 273A did not override sub-section (1), and the application filed under sub-section (1) should not have been rejected based on sub-section (4) conditions. Legal precedents were cited to support this argument. The respondent contended that the rectification application under section 154 merged with the original order, making it appealable under section 246, and the rectification grounds were not met by the petitioner. The judgment analyzed the appealability of orders under sections 154 and 273A, highlighting that orders passed by the Commissioner of Income-tax were not appealable under the mentioned sections.

Regarding the interpretation of sub-sections (1) and (4) of section 273A, it was found that sub-section (4) was not a provision overriding sub-section (1) but an additional provision. Therefore, the authority should have exercised power under sub-section (1) if conditions were met. The failure to exercise jurisdiction by the authority led to the waiver of penalty and the allowance of the waiver petition. The judgment also emphasized that the Commissioner's request for Board approval indicated satisfaction with pre-conditions. Consequently, the concerned authority was deemed to have failed to exercise vested jurisdiction, leading to the modification of the judgment and order, dismissal of the rectification application, and allowance of the writ petition and appeal.

In a concurring opinion, the second judge agreed with the analysis and decision of the primary judge, affirming the allowance of the writ petition and appeal.