Allahabad H.C : This writ petition is directed against the order dated March 30, 1982, passed by the CIT, Lucknow, rejecting the application moved by the petitioner under s. 273A of the IT Act, 1961, for waiver of penalties and penal interest.

Counsel Appeared

K.B. Jindal, for the Petitioner : S.C. Misra, for the Respondent

BY THE COURT :

This writ petition is directed against the order dated March 30, 1982, passed by the CIT, Lucknow, rejecting the application moved by the petitioner under s. 273A of the IT Act, 1961, for waiver of penalties and penal interest.

2. It appears that the petitioner had not submitted his income- tax returns for the asst. yrs. 197778, 1978-79 and 1979-80 at the appropriate time. He, however, submitted voluntary returns in respect of the assessment years mentioned above on July 31, 1980. The assessments were made by the ITO on December 31, 1980. The assessment orders also provided for issue of notices under s. 271(1)(a) and s. 273(b) of the IT Act for the three assessment years, namely, 1977-78, 197879 and 1979-80. The petitioner thereafter moved an application dated October 24, 1981, for waiver of penalty and interest on the ground that he had submitted returns voluntarily prior to the issue of notice and, therefore, was entitled for the benefit under s. 273A of the IT Act. The application was rejected by the CIT as indicated earlier. A true copy of the order passed by the CIT has been filed as annexure-3 to the writ petition. The CIT has observed that enquiries were initiated on the basis of information received from A.D.M. (Development) in July, 1978, informing that the petitioner had received commission under the National Savings Scheme. A notice was issued on the basis of the above information addressed to Sri S. C. Nigam, 20 Cantonment, Lucknow, on November 15, 1979. Admittedly, the name mentioned in the notice was incorrect. Therefore, the notice was not served. A fresh notice with the correct name as Sri A. C. Nigam was again issued on December 19, 1980, i.e., much after the voluntary returns submitted by the petitioner on July 31, 1980. The CIT found that the returns submitted by the petitioner can neither be said to be voluntary nor in good faith as they were filed only after the notice had been issued by the ITO in the name of S. C. Nigam. In substance, therefore, the conclusion drawn by the CIT was that the notice issued in the name of Sri S. C. Nigam was sufficient notice.

Learned counsel for the petitioner has submitted that the notice issued in the name of S. C. Nigam was no notice in the eye of law and it also did not amount to issuance of notice unless it was served upon the petitioner. He has further submitted that the word “issued” has been interpreted by the hon’ble Supreme Court as “served” while interpreting a similar provision under the WT Act and in this connection, he has placed reliance upon CWT vs. Kundan Lal Behari Lal’s case (1975) 99 ITR 581 (SC), which shows that a similar provision under s. 18 of the WT Act, 1957, as it then stood, provided for waiver or reduction of penalties in certain cases. It may be pointed out that new provisions of sub-ss. (2A) and (2B) of s. 18 have been incorporated in s. 18B by a subsequent amendment. It provided for waiver or reduction of penalty if, prior to the issue of notice, the assessee voluntarily and in good faith made full and true disclosure of his net wealth. Clause (a) of sub-s. (1) of s. 273A of the IT Act also provides for reduction or waiver of penalty if the assessee submits the return voluntarily and in good faith prior to the issue of a notice under s. 139(2) of the IT Act. The hon’ble Supreme Court has interpreted that “issue ” of notice means “service” of notice. That being the position, we are of the view that the CIT erred in taking into account the notice which was issued in the name of Sri S. C. Nigam and which was admittedly not served upon the petitioner, while refusing to waive the penalty. The petitioner had submitted the returns voluntarily that is to say, not in response to any notice but prior to service of notice, which was served subsequent to the submission of the returns.

On behalf of the Department, learned counsel has submitted that reduction or waiver of the penalty is a discretionary matter and in case the CIT refused to reduce or waive penalty in his discretion, it does not call for any interference in proceedings under Art. 226 of the Constitution of India. In this connection, learned counsel for the petitioner has placed reliance on certain cases to show that the discretion has to be exercised in a judicial manner. There is no dispute with the proposition. The discretion vested in an authority has to be exercised judicially taking into consideration the relevant facts. In the present case, we find that the CIT has observed that the return was filed after notice has been issued in the name of S. C. Nigam. Besides, the fact that this notice was not served upon the petitioner, it was not issued in the name of the correct person. Therefore, even if the petitioner had not received the notice as allegedly reported by the process server, this would not be a circumstance against the petitioner. Therefore, the order of the CIT dated March 30, 1982, contained in annexure-3 to the petition is liable to be set aside and the matter will have to be reconsidered by the CIT in the light of the provisions contained under s. 273A of the IT Act and the observations made in the judgment.

Learned counsel for the petitioner has also drawn our attention to the fact that the notice which was issued on December 19, 1980, and was served upon the petitioner was only in respect of the assessment year 1978-79. It was not in respect of the assessment of the other two assessment years, namely, 1977-78 and 1979-80. The learned CIT shall consider this aspect of the matter also while disposing of the matter afresh.

In the result, the writ petition is allowed and the order dated March 30, 1982, contained in annexure-3 to the writ petition is quashed. The CIT is directed to restore the petitioner’s application under s. 273A of the IT Act and decide the same according to law.

There would, however, be no order as to costs.

[Citation : 176 ITR 86]