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TMI Blog1983 (9) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... xxxii) of the Act because the firm in which he was a partner had manufacturing business and taking that exemption into account the assessee's net wealth was not taxable and, therefore, the penalty was not leviable. The WTO rejected this contention and levied a penalty. The assessee also made an application to the Commissioner for waiver of penalty under section 18B. The Commissioner reduced the penalty by Rs. 6,837. The assessee also filed an appeal where he put forward the same arguments as before the WTO. The AAC held that the assessee had not proved that the firm in which the assessee was a partner was engaged in manufacturing goods and since the assessee had himself returned the wealth of Rs. 1,63,569, the arguments put forward before h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the order of penalty and directed the Commissioner to hear the application on merits. The reasoning of the Hon'ble High Court is that wherever the Legislature wanted to exclude a revision in case an appeal had been preferred or could be preferred, it in terms said so. In this connection the High Court has cited section 264(4) and section 115 of the Act and the Code of Civil Procedure, 1908, and mentioned the Code of Criminal Procedure, 1898, also. Thereafter, the High Court has observed as follows : ". . . The whole concept under section 273A is that the assessee concerned admits his liability to penalty but relies upon certain mitigating circumstances or certains circumstances specified in the section for the purpose of getting the pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was also the sum and substance of both the Gujarat and Madhya Pradesh High Court decisions. 6. We are, therefore, faced with a situation where there is a certain degree of conflict between the judicial precedents and the consideration of a legal principle about the necessity of a provision for deprivation of a right. This appeal involves consideration of the age old important relief of clemency given to a delinquent. Beneath the surface of the words of the statute it is that relief which has to be considered. There is no doubt that the Madhya Pradesh High Court held in favour of the assessee. It has in terms stated as follows : "The provisions of section 18B of the WT Act, 1957, which confer power on the Commissioner to reduce or wai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal did not exclude a waiver application, it contrasted the two. 8. In fact the implication of the observations is that while an appeal does not exclude a waiver application, a waiver application excludes an appeal. Our decision in this case is in consonance with the above view of the Gujarat High Court. Further, section 23(1)(d) gives right of appeal only to a person who is objecting to any penalty imposed . . . under section 18 of the Act. In this case, the assessee does not object to the penalty. As held by the Gujarat High Court he admits his liability to penalty. Hence, in the first instance the appeal does not lie, i. e., he does not have a right of appeal. Consequently, the question of taking away that right does not arise. There ..... X X X X Extracts X X X X X X X X Extracts X X X X
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