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TMI Blog1998 (6) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... 8) and 217 of the Income-tax Act for the assessment years 1978-79 to 1984 under section 273A of the Act in pursuance of the order of the first respondent in C. Numbers mentioned above. In support of the writ petitions, the petitioners herein have filed separate affidavits wherein they have narrated all the facts and circumstances that forced them to file the present writ petitions and prayed that their writ petitions may be allowed as prayed for. Per contra, on behalf of the respondents, separate counter affidavits have been filed rebutting all the material allegations levelled against them one after the other and ultimately requested this court to dismiss the said writ petitions for want of merit. Heard the arguments advanced by learned counsel appearing for the petitioners and also those of learned senior counsel appearing for the Department. I have perused the contents of the affidavits and the counter affidavits together with all the relevant material documents available on record in the form of typed set of papers. I have also taken into consideration the various points raised by learned counsel appearing for the respective parties during the course of their arguments. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore a particular date to get the benefit of the section. The fact remains that the assessments have been made even after the prescribed time limit provided under the Act and the petitioner had paid tax on that assessment. Therefore, it is vehemently argued on behalf of the petitioners that the reason given by the first respondent in not allowing the full relief is arbitrary. It is also contended by the petitioners that the object of the section itself is defeated by the impugned order of the first respondent. According to them, the petitioners get a right under section 273A provided the conditions are complied with and that the petitioner is denied this right by the impugned order of the first respondent and hence the order is violative of articles 14, 19(1)(g) and 300A of the Constitution. It is contended by the petitioners that the reasons given by the first respondent in restricting the relief to 25 per cent. of Rs. 7,943, etc., is an invented one and not relevant for the purpose of considering the claim under section 273A of the Act and that the first respondent, for reasons best known to him did not want to grant the benefits of section 273A of the Act to the petitioners and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner. It is also stated by the Department that the power granted to the Commissioner under section 273A of the Act is discretionary and hence on the authority of the decision of the Supreme Court in Harbans Kaur's case [1997] 224 ITR 418, so long as reasons have been given by the Commissioner for exercising his discretion one way or the other, the courts should not interfere with such discretion. Therefore, it is the categoric stand of the Department that the orders impugned in these writs cannot be said to be in any way wrong or unjustified. It is no doubt true that the power granted to the Commissioner under section 273A of the Act is discretionary. A perusal of the said section goes to show that if he is satisfied that the assessee has voluntarily and in good faith made a full and true disclosure of his income or that it was so made prior to the detection by the officer of the concealment of particulars of income or of the inaccuracy of particulars furnished in respect of such income or that has been made prior to the issue of a notice to him under sub-section (2) of section 139 and also the assessee has in all the cases referred to above co-operated in any enquiry relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at being so, on the basis of the delay the respondents cannot deny 100 per cent. waiver of interest. Therefore, it can rightly be said that the object of section 273A is defeated by the impugned orders of the first respondent. Because the authorities have forgotten the basic element behind these provisions, i.e., to induce the taxpayers to come forward voluntarily and in good faith and only in order to give benefit to those of the assessees like the petitioners. When the first respondent himself has come to the clear conclusion that "all the conditions laid down under section 273A(1) are satisfied and he was of the opinion that this is a fit case for waiver", he should have waived the interest levied under sections 139(8) and 217 in toto and there is no justification or reason at all for him to waive only 25 per cent. Even though such power vested in him is a discretionary power, that has to be used judiciously and not arbitrarily. But in the facts and circumstances of this case, I am of the clear view that the said power has been used by the first respondent herein in an arbitrary manner. In support of the contentions raised by the petitioners, they rely on the decision report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the omission or default mentioned in the respective provision, the Revenue is deprived of the benefit of the tax for the period during which it has remained unpaid. In that case, the return had been furnished under section 139 with delay and it will be a question merely of satisfying the relevant authority that there are circumstances calling for a reduction or waiver of the interest. It is significant to note that in that case the assessee was assessed to income-tax from the assessment year 1967-68. Interest under sub-section (8) of section 139 of the Income-tax Act amounting to Rs. 56,391 and interest under section 215 of that Act amounting to Rs. 9,42,336 subsequently reduced to Rs. 5,07,880 were levied against the appellant. According to the appellant, there was ample and clear justification for the delay in furnishing the return under section 139 and for payment of advance tax under section 212 at a figure less than 75 per cent. of the assessed tax. Whereas it is significant to note that the case on hand is one where the petitioners herein for the first time had made the assessment that too voluntarily for several years. Therefore, factually both the cases are different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the entire interest is opposed to the provisions of section 273A. It is also significant to note that the said section prescribed certain conditions, which were strictly complied with by the petitioners. Above all, this section does not say that the return should have been filed on or before a particular date to get the benefit of the section. That being so there is no reason at all for the first respondent to deny the remaining 75 per cent. of waiver on the basis of the delay in filing the returns. The Department has to keep in their mind that the assessments in these cases have been made even after the prescribed time limit provided under the Act and the petitioners also had paid tax on that amount. Therefore, in the above peculiar facts and circumstances of this case, I am of the clear view that the first respondent has no ground or reason at all to deny the remaining 75 per cent. of waiver of interest and also that such denial is arbitrary. Therefore, for all the aforesaid reasons and in the peculiar facts and circumstances of this case and also in view of my above discussion with regard to the various aspects of this case, I am of the clear view that the petitioners here ..... X X X X Extracts X X X X X X X X Extracts X X X X
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