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TMI Blog2009 (4) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... IA, JJ. Ms. Vasanti B. Patel for the petitioner. None for respondents. JUDGMENT 1. The brief point involved in these matters is whether the Commissioner of Income-tax was justified in refusing waiver of interest under Section 139(8) and Section 217 of the Income-tax Act, while for the same reasons the penalty was waived. 2. To state in brief, Writ Petition No.888 of 1994 is filed by M/s. Sun Deep Jewellers, which is a partnership firm and other two petitions are filed by the partners thereof. Admittedly, the partnership firm and the partners filed their respective Income-tax returns for the assessment years 1987-88 and 1988-89 on 7.2.1990. Therefore, it is clear that the income tax returns were submitted long after th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was waived. However, the Commissioner of Income-tax refused to waive the interest charged for both the assessment years. It appears that the application for review by the firm was also rejected on the same grounds. According to the Commissioner of Income-tax, the petitioners were expected to deposit the income tax within time and because of the delay on their part, the Government has been deprived of those taxes within time and, therefore interest has ben charged under Sections 139(8) and 217 of the I.T. Act. 3. The learned Counsel for the petitioners contended that the conditions for waiver of penalty and the conditions for waiver of interest are the same in view of the provisions of Section 273A and if the explanation given by the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... true disclosure of such particulars; (c) in the cases referred to in clause (iii), has, prior to the issue of a notice to him under sub-section (2) of section 139, or where no such notice has been issued and the period for the issue of such notice has expired, prior to the issue of notice to him under section 148, voluntarily and in good faith made full and true disclosure of his income and has paid the tax on the income so disclosed, and also has, in all the cases referred to in clauses (a), (b) and (c), co-operated in any enquiry relating to the assessment of his income and has either paid or made satisfactory arrangements for the payment of any tax or interest payable in consequence of an order passed under this Act in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is also no dispute as regards the conditions that the petitioners had voluntarily and in good faith made full and true disclosure of their income. The question which arises for consideration is whether the two common conditions which are applicable to all the three clauses, viz. (a), (b) and (c), can be said to have been satisfied in respect of both the claims, viz. the claim of waiver of penalty and the claim of waiver of interest. The two conditions are that:(i) the assessee should have co-operated in any enquiry relating to the assessment of his income, and (ii) the assessee should have paid or made satisfactory arrangements for payment of tax or interest payable in consequence of an order passed in respect of the relevant assessment y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pear to have been passed without proper application of mind." 5. In Sushila Indubhai Patel vs. Union of India and Bom. ) another (2008) 303 ITR 308 (Bom),the assessee was out of the country for a period of 9-1/2 years and, therefore, there was delay in submission of the income tax returns for the assessment years 1979-80 to 1988-89. In that case also the Assessing Officer had levied interest and also penalty. The Commissioner (Appeals) deleted the penalty, but the application for waiver of interest was rejected. This Court allowed the writ petition and held that when the penalty was waived, the Commissioner of Income-tax was not justified in rejecting the application for waiver of interest on the same grounds. In view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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