9911796707
TMI Blog1993 (6) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... waived the interest under both sections finding that the assessee has before issue of a notice voluntarily filed returns of income disclosing the true income and has paid tax and as such is entitled to waiver of interest imposed under the above sections in full. Subsequently, the third respondent issued notice of proceedings for the imposition of penalty under sections 271(1)(a) and 273(2)(b) of the Act. On receipt of the notice, the petitioner submitted exhibit P-2 petition dated March 20, 1986, praying for waiver of penalty imposable under sections 271(1)(a) and 273(2)(b) of the Act. That petition was rejected by the second respondent by exhibit P-3 order dated August 3, 1987, on the ground that he had already exercised the power conferred on him under section 273A(1) of the Act and as such he has no power to pass a second order in exercise of the said power. The total penalty imposed under the two sections was Rs. 10,694. On receipt of exhibit P-3 order, the petitioner filed exhibit P-4 petition dated May 4, 1988, under section 154 of the Act before the second respondent alleging that there are certain mistakes apparent on the record. It was alleged that, while taking the view t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this original petition in exercise of the extraordinary jurisdiction vested in this court under article 226 of the Constitution of India. It was also contended that the view taken by the second respondent while disposing of the petition filed under section 154 of the Act to the effect that there is no apparent error on the record is also justifiable in the circumstances of the case. Learned counsel for the petitioner has submitted that, being a provision in a fiscal statute, the provision contained in sub-section (3) should be construed strictly and in the absence of any express prohibition from claiming further relief in respect of the assessment year or years in relation to which already an order has been passed by the second respondent under sub-section (1) of section 273A of the Act, the provision should be interpreted in such a manner as to enable the beneficiary of the provision to claim the reliefs conferred by the section from time to time. When a power is conferred on an authority by a statute, it must be considered as one exercisable from time to time as the occasion requires as provided in section 14 of the General Clauses Act, 1897, unless a different intention appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercised only once and no second order can be passed in exercise of the power conferred by the said section, learned counsel for the first respondent has strongly relied upon the Division Bench decision of the Allahabad High Court in Ram Sarandas Har Swaroop Mal v. CIT [1990] 186 ITR 503. In the light of the contentions so raised, the question arising for consideration is whether exhibit P-1 order passed in favour of the petitioner waiving interest imposed under sections 139(8) and 217 of the Act would preclude the second respondent from passing an order on exhibit P-2 petition exercising once again his power under section 273A(1) of the Act. Section 273A(1) and (3) read thus: "273A(1). Notwithstanding anything contained in this Act, the Commissioner may, in his discretion, whether on his own motion or otherwise, (i) reduce or waive the amount of penalty imposed or imposable on a person under clause (i) of sub-section (1) of section 271 for failure, without reasonable cause, to furnish the return of total income which he was required to furnish under sub-section (1) of section 139 ; or (ii) reduce or waive the amount of penalty imposed or imposable on a person under clause ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d respondent to reduce or waive the amount of penalty imposed or imposable on a person under section 271(1) of the Act. Clause (ii) similarly empowers the second respondent, in his discretion, to reduce or waive the amount of penalty imposed or imposable an a person under section 271(1)(b) of the Act. Clause (iii) in terms empowers the second respondent, in his discretion, to reduce or waive the amount of interest paid or payable under sub-section (8) of section 139 or section 215 or section 217 or the penalty imposed or imposable under section 273 of the Act. Further, the said sub-section provides that the second respondent can pass orders in respect of matters enumerated in clauses (i) to (iii) only after satisfying himself about the fact that a person who claims benefit under section 273A(1) of the Act fulfils the conditions mentioned respectively in clauses (a) to (c) of the same sub-section. The conditions mentioned in clauses (a) to (c) are conditions prescribed for the exercise of the power conferred on the Commissioner respectively under clauses (i) to (iii) and they are also distinct and separate. Thus, before passing orders in respect of the different matters provided und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was relied upon by either side in support of their contentions. Being the only decision referred to as having relevance in the matter, I may first consider how far the decision is helpful to decide the issue raised in the original petition. It is true that, while construing the provisions in sub-section (3) of section 273A of the Act, B. P. Jeevan Reddy C.J. (as his Lordship then was), on behalf of the Division Bench, has observed that : "The true meaning of sub-section (3) is that the power shall be exercised only once in the case of a given person and not more than once ". The above observation apparently supports fully the contention of the first respondent and as such deserves detailed consideration in the light of the facts and circumstances of the case and the contentions raised by learned counsel for the petitioner. The relevant observations were made in a case where the Income-tax Officer had levied interest under section 139(8) on the assessee for late filing of returns and also imposed penalties under section 271(1)(a) of the Act for the assessment years commencing from 1978-79 and ending with 1981-82. The assessee in that case filed an application before the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which an order has already been passed by the Commissioner in exercise of his power under sub-section (1) of section 273A of the Act. On a consideration of the scheme of the provisions contained in subsections (1) and (3) of section 273A of the Act as indicated above and the rival contentions raised by counsel on both sides, I am inclined to take the view that the power conferred under section 273A(1) is a power conferred with reference to different matters which is liable to be exercised from time to time by the second respondent on being satisfied that the conditions mentioned in clauses (a) to (c) of that sub-section are fulfilled by the beneficiary subject to the further condition that the reliefs in respect of all or any of the matters can be claimed and granted only once in favour of one and the same person and not for a second time. Though conferred compendiously under one sub-section, it is a power exercisable in relation to various matters either independently or jointly and that the exercise of power in relation to one of the matters mentioned in the different clauses of sub-section (1) may not preclude the beneficiary from claiming reliefs in respect of other matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w. Regarding the interpretation of sub.-section (3) also, I am inclined to take the view that the said sub-section expressly prohibits only the exercise of power to grant the same relief or reliefs under clauses (i) to (iii) for a second time and that too for a period different from the period for which the relief or reliefs under these clauses have already been sought and either refused or granted by an earlier order passed by the second respondent. Once an order is passed in relation to one of the matters specified in any of the clauses of sub-section (1) so far the power would stand exhausted and no further order can be passed in respect of that matter for any other year at any time. If, on the other hand, the argument of learned counsel for the first respondent is accepted, it would follow that even if the second respondent was called upon to exercise his power in relation to only one of the several matters mentioned in the three clauses, that would preclude the assessee from claiming relief in respect of all other matters in respect of which there had been no occasion for the second respondent to exercise his power. To my mind, there is no indication in the provisions of sub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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