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TMI Blog2003 (11) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... of interest - - - - - Dated:- 12-11-2003 - Judge(s) : R. GURURAJAN. JUDGMENT R. GURURAJAN J.-These two petitions involve almost the same/similar facts and hence a common order is passed. The facts in W.P. No. 35343 of 2003 are as under: The petitioner, M/s. Padmapriya Oil Mills, carries on business in edible oils. The petitioner for the assessment year 1997-98 ought to have filed a return of income under section 139(1) of the Act on or before August 31, 1997. He filed the return of income on March 31, 1998, declaring an income of Rs. 8,530. It was beyond the statutory period in terms of the provisions of the Income-tax Act. The said return was filed on March 31, 1998, and is a voluntary return according to the petitioner and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing, an adverse order has been now passed in terms of annexure E. Annexure E is challenged. The respondents have filed a detailed statement of objection. They say that in terms of sections 234A, 234B and 234C, there is a mandate to levy interest in terms of the provisions. In so far as the voluntary nature of the transactions is concerned, the same is disputed. According to the respondent, it is not voluntary in nature. The respondent says that the Chief Commissioner is right in passing the order. Writ Petition No. 35344 of 2003 is filed by one Sri Prasad of Bangalore. He is a partner in the firm of M/s. Padmapriya Enterprises. His share income is exempt under section 10(2A) of the Income-tax Act (for short "the Act"). He, out of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ala, learned standing counsel appearing for the respondent. Sri Rama Murthy, learned counsel, says that a case is made out in the case on hand. According to him, the material facts would reveal a voluntary return of income and that has not been properly appreciated or considered by the respondent for the purpose of waiver of interest. According to him, injustice has been done to his client. He wants the waiver of interest to be considered in his favour. He relies on certain judgments to which I would be adverting in the subsequent paragraphs. Per contra, Sri Seshachala, learned standing counsel, says that the respondent has strictly acted in accordance with law. His further submission is that no waiver is possible in the case of a retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above would indicate that, to qualify for waiver of interest, the return of income should be filed not only voluntarily but also before detection by the Department. Further the delay in filing of return should be due to unavoidable circumstances. In the instant case, during the course of a survey under section 133A conducted on October 15, 1998, in the premises, the firm, M/s. Padmapriya Enterprises, in which the petitioner was a partner, it was 'noticed that the petitioner had invested in acquisition of immovable properties in Gavipuram Extension, Bangalore, on August 28, 1993, and the source of investment was not explained convincingly. It is clear from the above that the return of income for the assessment year 1994-95 was filed only aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation to another to do what his free will would refuse. Coercion that vitiates confession can in terms of Black's Law Dictionary be mental as well as physical. In other words, an action can be 'involuntary' not merely because it has been taken by the use of actual direct or positive physical force but also where such action is taken on account of mental and other constraints. That would not however mean that a mere legal obligation to do something should constitute a constraint of the kind which would render any such action involuntary. For if that be so, there would hardly be any disclosure made under the Income-tax Act which can be treated as 'voluntary', in the light of section 139 which creates a legal obligation for all those having a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it stands on a totally different footing. That was also a case in which search was conducted not in the premises of the firm but the premises of ACC Ltd. In the given set of facts, the court considered the voluntary nature in that case. After all, the voluntary nature of the transaction has to be gathered from the facts of each case and there cannot be any uniform law in such cases. This court has ruled in unmistakable terms that after search proceedings if any return is filed, it cannot be termed as voluntary. Hence, it is not possible for me to close my eyes and hold in favour of the petitioner. In these circumstances, I am unable to accept the argument of the petitioner. I do not find any legal errors in the order warranting my interfere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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