9911796707
TMI Blog2000 (2) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... e returns were duly paid along with the return. The due dates for filing of the returns for the assessment years 1987-88 and 1988-89 were July 31, 1987, and August 31, 1988, respectively. The income returned for the assessment year 1987-88 was Rs. 1,73,730 and the income returned for the assessment year 1988-89 was Rs. 1,12,612. It is further stated that there was a change in the constitution of the firm on January 25, 1986, resulting in the retirement of partners and on the same date three other partners were admitted to the partnership. At that time there were differences of opinion among the partners. It is further stated that due to various business pre-occupations and export commitments, the returns for the two assessment years were filed belatedly. However, the petitioner has paid the entire tax at the time of filing of the returns for the assessment years 1987-88 and 1988-89. The petitioner filed returns voluntarily on January 1, 1990, for 1987-88 and on September 26, 1990 for 1988-89 in good faith and made a full and true disclosure of their income before a notice, under section 139(2) or 148 of the Income-tax Act (hereinafter referred to as "the Act"), was issued to them. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent year 1988-89 the return of income has been filed on the subsequent date, hence, according to her, this is considered to be a separate disclosure and after holding so rejected the request for waiver. Now, the only question for consideration in this writ petition is whether the first respondent is justified in rejecting the request for waiver for the assessment year 1988-89. It is seen from the particulars furnished that the petitioner had voluntarily filed returns of income before the second respondent for the assessment year 1987-88 on January 1, 1990, and for the assessment year 1988-89 on September 26, 1990. It is also stated that the taxes due as per the returns were duly paid along with the return. There is no dispute that the due dates for filing of the returns for the assessment years 1987-88 and 1988-89 were July 31, 1987, and August 31, 1988, respectively. There is no need to go into the reason for the delay, in this writ petition. When the grounds for waiver for both the assessment years were identical, the first respondent has accepted the request for waiver for 1987-88 only. In order to appreciate the rival contentions, it is useful to refer to section 273A of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfied that--- (i) to do otherwise would cause genuine hardship to the assessee, having regard to the circumstances of the case ; and (ii) the assessee has co-operated in any enquiry relating to the assessment or any proceeding for the recovery of any amount due from him : Provided that where the amount of any penalty payable under this Act or, where such application relates to more than one penalty, the aggregate amount of such penalties exceeds one hundred thousand rupees, no order reducing or waiving the amount or compounding any proceeding for its recovery under this sub-section shall be made by the Commissioner except with the previous approval of the Chief Commissioner or Director-General, as the case may be. (5) Every order made under this section shall be final and shall not be called into question by any court or any other authority. (6) The provisions of this section as they stood immediately before their amendment by the Direct Tax Laws (Amendment) Act, 1989, shall apply to and in relation to any assessment for the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year, and references in this section to the other provisions of this A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on May 14, 1990, and May 1, 1990, seeking exemption or waiver of interest leviable under sections 139(8), 215 and 217. All those applications were taken together for consideration by the Commissioner and by a common order dated March 8, 1981, he disposed of, the applications. For the year 1985-86, the Commissioner found that the assessee satisfied the conditions and, therefore, granted waiver of interest as enumerated therein. Thereafter, for the year 1986-87, the Commissioner took the view that only the first disclosure was eligible for waiver and those applications were not considered. After referring to section 273A(3) of the Act, the learned judge has observed : "Although, in the case referred to by learned counsel, the facts were as stated by him, the principle upon which the whole decision is based is that once the power is exercised by the Commissioner, that power cannot again be exercised as available under section 273A. Here the power had not been exercised prior to the impugned order. Therefore, in the impugned order itself, he could have considered the relief sought for by the petitioner in the two different applications. There is no particular significance in filing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e used in the statute, particularly in clause (b) of sub-section (1) of section 273A of the Act and in the light-of the various judicial decisions, it is clear that if the assessee is able to satisfy the conditions he can ask for waiver of penalty even in one application for more than one year and such application can be considered. It is also clear that the discretion vested on the Commissioner under the said provision has to be exercised in a reasonable and fair manner and while rejecting the claim for waiver he has to indicate his reason or reasons. In the light of the particulars furnished by the petitioner for filing return for the assessment year 1988-89 and of the fact that the petitioner has complied with the conditions prescribed under section 273A of the Act, I am of the view that there is no justification on the part of, the first respondent to summarily reject the request for waiver of interest and penalties levied for the year, 1988-89, particularly when the grounds for waiver prevailing for both the assessment years 1987-88 and 1988-89 were identical. It is also clear from the particulars furnished that the petitioner has voluntarily and in good faith made true and fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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