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TMI Blog1990 (3) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... ner accepted the application, vide order dated November 26, 1985, observing that the petitioner had satisfied all the conditions laid down in section 273A. The successor-Commissioner, however, felt that the order passed by his predecessor under section 273A suffered from an apparent mistake rectifiable under section 154 of the Act. After allowing the petitioner opportunity of being heard, he passed the impugned order dated February 3, 1986. The effect of the rectification order is that the petitioner became liable to interest under section 139(8) and under section 215/217 and to penalties under section 271(1)(a) and section 273 of the Act. The successor-Commissioner, it may be mentioned, referred to the note of his predecessor on the file in his impugned order which, according to him, indicated that the petitioner was held to be satisfying all the conditions for the application of section 273A oil the basis of the deeming provisions of Explanation 2 to that section but the assumption was wrong as Explanation 2 created a fiction in respect of the conditions under section 273A(1)(b) only and not in respect of the conditions in section 273A(1)(a) and section 273A(1)(c). For waiver o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that such an order shall not be called into question by any court or any other authority. Admittedly, an order under section 273A can be passed only by the Chief Commissioner or Commissioner. The Commissioner is admittedly not a court. Any other authority will ordinarily mean any authority other than the authority which passed the order. Therefore, the second limb of the sub-section will not apply to the Commissioner who passed the order. His power to rectify the order under section 154 will depend upon the construction of the first limb of the sub-section, namely, any order passed under section 273A shall be final. Having regard to the fact that the Commissioner is empowered to rectify his own order under section 154, it is difficult to hold that if a glaring and/or obvious mistake of fact or law has crept in the order passed by him under section 273A, the order should continue to suffer from that mistake. The effect of rectification is that, after the rectification, there do not exist two orders, one without rectification and the other after the rectification or the rectifying order. There remains only one order, i.e., the rectified order, as if that was the order passed orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nditions laid down in section 273A was merely on the basis of the applicability of Explanation 2 thereto. Here again, the note quoted earlier speaks for itself. In my judgment, the submission made on behalf of the Department is not tenable in law. No doubt the successor-Commissioner has referred to and relied upon the note in the file to say that the predecessor Commissioner had come to the conclusion on the basis of Explanation 2. Apart from the fact that the conclusion is that the petitioner satisfied all the conditions laid down in the section, it appears to me that the note refers to two reasons, viz., (i) disclosures filed have been found to be full and true by the Income-tax. Officer/Inspecting Assistant Commissioner, and (ii) in the light of Explanation 2 to section 273A, the disclosure is to be deemed to be voluntary and made prior to the detection of concealment of income and in good faith. It is pertinent to mention that the Commissioner was considering the question of waiving the penalties imposable tinder sections 271(1)(a), 273 and 271(l)(c) and interest chargeable under sections 139(8) and 215/217. So far as penalty imposable under section 271 (1) (c) is concerned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sense of fear. The court was examining the purpose and scope of the word "voluntary" used in section 273A. This is undoubtedly decision against the petitioner. On the other hand, the Karnataka High Court, in the case of B. Anjanappa v. CWT [1980] 124 ITR 433, held that the dates of filing of the returns were not very material. If the assessee had made full disclosure of his net wealth in the returns filed, the conditions mentioned in clause (a) would stand satisfied. It is pertinent to mention that the Karnataka High Court took the same view in Shankara Apaya Swami v. WTO [1976] 103 ITR 649, CWT v. C. S. Manvi [1978] 114 ITR 417 (Kar) and Smt. Shantha Devi v. WTO [1980] 121 ITR 703 (Kar). For the sake of brevity, reference to those cases is not considered necessary. A similar question came up before the Punjab and Haryana High Court in the case of Hira Singh v. CWT [1982] 134 ITR 438, where again it was held that the words "voluntarily and in good faith" occurring in section 18B(1)(i)(a) of the Wealth-tax Act, 1957 (which is identical to the provisions involved herein), qualified the words "made full and true disclosure of the net wealth". Merely because the Wealth-tax Officer ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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