9911796707
TMI Blog2004 (1) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... 1987-88 remained to be filed on due dates after the death of the father of the petitioner. Even returns in the status of individual were filed by the petitioner belatedly. According to the petitioner he was too much overburdened with the work after the death of his father and as soon as the particulars were gathered, he filed returns on his own initiative without there being any statutory notice from the Income-tax Department under section 139(2) or 148 of the Income-tax Act, 1961 ("the Act", for short). In other words, without there being any communication or notice from the Assessing Officer, prior to the filing of the returns, the petitioner filed returns suo motu. The Assessing Officer completed the assessment on the basis of the returns and accepted the returns filed by the petitioner in his individual as well as in the capacity of a karta of his Hindu undivided family as correct. However, while passing the assessment orders, the Assessing Officer levied penal interest under section 139(8) for delayed submission of returns of income and penal interest under section 217 for non-payment of advance tax and initiated penalty proceedings under sections 271(1)(a) and 273(1)(b) for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance with law and exercised his discretion properly and that the petitions are devoid of any merit. Mr. Inamdar, learned counsel for the petitioner, urged that once the conditions required for exercise of discretion in any judicial or quasi-judicial proceedings are satisfied, exercise of discretion cannot be either arbitrary or capricious. It has to be exercised judicially and objectively. He also referred to certain decided cases in support of his submissions and prayed for setting aside the impugned orders. Mr. R.V. Desai, learned senior counsel appearing for the Revenue, tried to support the impugned orders contending that the petitioner has failed to explain sufficient cause for delay in filing the returns. He further contended that the petitioner could not be said to be unaware of the necessity of filing returns since he was looking after the business of the Hindu undivided family. He further submits that so far as the bona fides of the petitioner are concerned, the same must be taken into account and his conduct should be examined right from the date of omission to file the returns till the date the returns are actually filed. He further submits that no advance tax was paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e returned is of such a nature as not to attract the provisions of clause (c) of sub-section (1) of section 271. (2) Notwithstanding anything contained in sub-section (1), - (a) if in a case the penalty imposed or imposable under clause (i) of sub-section (1) of section 271 or the minimum penalty imposable under section 273 for the relevant assessment year, or, where such disclosure relates to more than one assessment year, the aggregate of the penalty imposed or imposable under the said clause or of the minimum penalty imposable under the said section for those years, exceeds a sum of one hundred thousand rupees, or (b) if in a case falling under clause (c) of sub-section (1) of section 271, the amount of income in respect of which the penalty is imposed or imposable for the relevant assessment year, or, where such disclosure relates to more than one assessment year, the aggregate amount of such income for those years, exceeds a sum of five hundred thousand rupees, no order reducing or waiving the penalty under sub-section (1) shall be made by the Chief Commissioner or Commissioner except with the previous approval of the Board. (3) Where an order has been made under sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grievance about non-fulfilment of the above conditions of the section. In the above backdrop, the crucial issues which need consideration are whether the Commissioner of Income-tax has exercised his discretion in consonance with the provisions of section 273A of the Act and whether the impugned order is in accordance with law. Consideration: At this juncture, it will not be out of place to mention that section 273A has been a subject matter of judicial interpretation in a number of reported cases. A number of cases were cited at the Bar. A few of them can be referred to. In the case of Krishnan Gopi v. P.S. Bhaskaran, CIT [1986] 161 ITR 631, the learned single judge of this court had an occasion to deal with section 273A and to interpret the provisions of the said section. While interpreting the said section, the learned judge observed that where interest and penalty have been levied for failure to pay advance tax, delay in filing return and/or for non-payment of a part of the tax on self-assessment and the assessee applies for waiver of the penalty and interest, in that event such application cannot be rejected on the ground that the assessee has committed various acts which att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no question of co-operating with the Department where the returns were accepted without there being any notice to the assessee. There is also no material on record to presume that had there been notice issued to the petitioner-assessee, the petitioner would not have co-operated with the Department. It is also not in dispute that after filing of the returns the petitioner has paid the amount of tax. Under these circumstances, the petitioner has, unequivocally, established that he has complied with the necessary requirements of section 273A of the Act. In the background of the aforesaid facts, if one turns to the impugned orders passed by the Commissioner of Income-tax, Pune, he has taken into account unawareness of the petitioner with respect to the Hindu undivided family status and went on to record findings that it cannot be believed that the petitioner was not aware of his Hindu undivided family status. At this Juncture it will not be out of place to mention that at no point of time it was the case of the petitioner that he was not aware of the Hindu undivided family status. On the contrary the case set out by the petitioner was that after the death of his father he was ove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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