9911796707
TMI Blog2008 (8) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... lid. - 311 of 1996 - - - Dated:- 7-8-2008 - ANOOP V. MOHTA, PANGARKAR C. L. JJ. C.J. Thakkar for the petitioner. A.S. Jaiswal for the respondent. JUDGMENT The judgment of the court was delivered by Anoop V. Mohta J.- The petitioner has challenged the order dated December 28, 1995, passed by the Commissioner, Income-tax, Vidarbha Region, Nagpur, whereby the interest under section 139(8) and penalty under section 217 of the Income-tax Act, 1961 (for short "the Act") for the assessment years 1984-85 to 1988-89 have been retained though prayed for waiving the same. Therefore, the present petition. 2. The petitioner is the karta of a Hindu undivided family. He voluntarily and in good faith pursuant to the assurance gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturns were being filed after issue of notice under section 148 and therefore, rejected the application by order dated December 28, 1995. 6. The petitioner has relied on the interpretation and scheme and object of section 273A of the Act, as elaborated in B. R. Sound-N-Music v. O.P. Bhardwaj reported in [1988] 173 ITR 433 (Bom). The special leave petition filed by the Department against the above judgment of the Bombay High Court was dismissed by the Supreme Court in Appropriate Authority v. Tanvi Trading and Credits P. Ltd. [1991] 191 ITR 307. 7. The Division Bench of the Bombay High Court in Laxman v. CIT [1988] 174 ITR 465 has explained the scheme and purpose of the section in the following words (page 474) : "On behalf of the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 273 of the Act cannot be rejected on the ground that there was no voluntarily disclosure, and thereby such order of a Commissioner was quashed and set aside and remanded the matter to decide the application on the merits. 10. In Shrikrishna S. Bhagwat v. S. N. Soni, CIT [2004] 270 ITR 186 (Bom) while considering sections 139(8), 217 and 273(1)(b) and specially section 273A has observed as under (page 191) : "Dissection of the above provisions would spell out the condition precedent for exercise of discretion to waive the penalty or interest under section 273A of the Act, which can be catalogued as under : (a) voluntary disclosure of income before issuance of notice under section 139(2) ; (b) making of full and true disclosure of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant relief with regard to any number of assessment years based upon section 273A(3) of the Act. 13. The non obstante clause of section 273A makes the provision single out of a lot. The power/discretion so provided to the Commissioner to waive/ reduce penalty and interest needs to be exercised judiciously, fairly, reasonably, objectively and not arbitrarily. The Commissioner, essentially after applying his mind to facts and circumstances of the case needs to pass speaking and reasoned order after taking into consideration the scheme and object of the section 273A including elements like voluntary act of filing return in good faith full and true disclosure of income payment of the tax and co-operation. Once the case is made out for waive ..... X X X X Extracts X X X X X X X X Extracts X X X X
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