9911796707
TMI Blog1984 (11) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... 1964-65. In the present petition, the challenge is to the order regarding the return filed on April 8, 1967, for the assessment year 1964-65. It is admitted by the petitioner that the return was filed late and as such penalty was leviable under section 271(1)(a) of the Act for the said assessment year. However, the case of the petitioner is that he had filed the return prior to the issue of notice to him under sub-section (2) of section 139 of the Act. The return filed was not only voluntary but was made in good faith inasmuch as he had made fall disclosure of his income. Thus, the Commissioner of Income-tax failed to exercise discretion vested in him in not reducing or waiving the penalty, it is urged. At this stage, it is appropriat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income for the said year as contemplated by section 271(4A) of the Act. I may note here another fact. The petitioner had challenged the order of the Appellate Assistant Commissioner, referred to in the above quoted order of the Commissioner, before the Income-tax Appellate Tribunal. The Revenue had also filed an appeal against that very order. The two appeals were decided by a common order of December 22, 1970. While dismissing the appeal filed by the Income-tax Officer and allowing the appeal of the assessee (in part) it was observed : " The application of the proviso to section 145 is undoubtedly called for. However, we feel that the estimate of sales at Rs. 90,000 is somewhat excessive. We have in the last year's appeal estimated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy, entire or perfect. The finding of the Commissioner in the impugned order that the petitioner had not made full disclosure and, therefore, the discretion ought not to be exercised in his favour, is wrong, and is liable to be set aside. I may note here that Shri Prem Nath, Commissioner of Income-tax, has filed a counter-affidavit in opposition to the writ petition wherein he has averred to additional reasons than the one given in the order for rejecting the application of the petitioner. In reply to paragraph 10(ii) of the petitioner, it is, inter alia, urged : " I say that although I had received the application of the petitioner under section 271(4A) before the assessment was made and penalty was levied yet I was of the opinion th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice under section 139 had not been issued to the assessee) and that the Commissioner could not at that stage reduce or waive the penalty are contrary to the only reason stated in the impugned order. The view which I am taking is supported by the contention urged in the counter-affidavit that the Commissioner ought not to have at that stage found that the full disclosure had not been made in the return. The return was filed voluntarily. As per the finding of the Tribunal, by virtue of proviso to section 145, those were correct and complete. The finding that those were not " full " as per the impugned order, on the respondent's own showing in the counter-affidavit, cannot be upheld. The result is that the petition succeeds and the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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