1993 (5) TMI 7 - HC - Income Tax

Summary

Issues Involved:
1. Legality of the writ petition without verification.
2. Maintainability of the writ petition without annexing copies of challenged orders.
3. Prematurity of the writ petition.
4. Requirement of a demand for justice.
5. Availability of an alternative remedy.
6. Finality of the Board's decision under section 273A(5).
7. Satisfaction of pre-conditions for waiver of penalty and interest under section 273A.
8. Requirement for the Board to provide reasons for its decision.
9. Necessity of a hearing before the Board's decision.
10. Discretion of the Commissioner and Board in waiving penalties and interest.

Detailed Analysis:

1. Legality of the Writ Petition Without Verification:
The respondents argued that the writ petition should be dismissed because the copy served did not contain the verification clause. However, the court found this submission untenable, noting that the original writ petition was duly verified and no prejudice was caused to the respondents, who had not requested the verification portion during the six-year pendency of the writ.

2. Maintainability of the Writ Petition Without Annexing Copies of Challenged Orders:
The respondents contended that the writ petition was not maintainable because the copies of the orders challenged were not annexed. The court rejected this argument, stating that the decision of the Board was the subject of the challenge and no copy of the order was served on the petitioner. Insisting on the presence of the order would place an impossible burden on the petitioner.

3. Prematurity of the Writ Petition:
The respondents claimed that the writ petition was premature as no final order had been passed by the Commissioner under section 273A. The court clarified that the subject of the challenge was the Board's refusal to approve the waiver, which had already occurred, making the writ petition appropriate.

4. Requirement of a Demand for Justice:
The respondents argued that the petitioner had not made any demand for justice under rule 20 of the rules framed by the court. The court found that the petitioner's application to the Board for reviewing its decision sufficed as a demand for justice, and any further demand would have been pointless.

5. Availability of an Alternative Remedy:
The respondents suggested that the petitioner had an alternative remedy by appealing the orders imposing penalty and interest. The court noted that the petitioner was not challenging the imposition of penalties or interest but was seeking a waiver, for which no appeal was provided under the statute.

6. Finality of the Board's Decision Under Section 273A(5):
The respondents contended that the court could not interfere with the Board's decision due to the finality clause in section 273A(5). The court disagreed, stating that the finality applies to orders made under the section, and the court's inquiry was to determine if the Board's action was in accordance with section 273A.

7. Satisfaction of Pre-conditions for Waiver of Penalty and Interest Under Section 273A:
The court outlined the pre-conditions for waiver under section 273A, including voluntary and good faith disclosure, full and true disclosure, cooperation in assessment, and payment or satisfactory arrangements for tax or interest. The court noted that the Commissioner was satisfied with the firm's compliance with these conditions, and the Board's refusal lacked disclosed reasons.

8. Requirement for the Board to Provide Reasons for Its Decision:
The court criticized the Board for not providing reasons for its decision, noting that the affidavit merely paraphrased section 273A without offering specific grounds. The court emphasized the need for cogent and sufficient reasons for rejecting the waiver.

9. Necessity of a Hearing Before the Board's Decision:
The court held that the firm should have been given an opportunity to be heard before the Board's decision, citing principles of natural justice. The Board's decision was found to be prejudicial to the firm without granting a hearing, making it unreasonable and in violation of natural justice.

10. Discretion of the Commissioner and Board in Waiving Penalties and Interest:
The court noted that the Commissioner's satisfaction with the firm's compliance was crucial, and the Board's approval was only required if the penalty exceeded certain limits. The court rejected the respondents' argument that the Commissioner could change his satisfaction without new factors, affirming that the Commissioner's initial satisfaction was binding unless new circumstances arose.

Conclusion:
The court set aside the Board's decision to refuse approval for waiver and directed the Board to give the firm an opportunity to be heard regarding the imposition of penalty under section 271(1)(iii). The Commissioner was directed to waive penalties under sections 271(1)(i) and 273, and interest under sections 139(8) and 215, for the assessment years 1979-80, 1980-81, and 1981-82, except for 1982-83 and 1983-84. The interim order would continue until final decisions were made.