High Court Of Bombay : Nagpur BenchÂ
Smt. Prakashkumari vs. CIT
Section 139(8), 217, 273A
Asst. Year 1983-84, 1984-85, 1985-86
Anoop V. Mohta & C.L. Pangarkar, JJ.
Writ Petn. No. 3355 of 2001
22nd August, 2008
Counsel appeared :
C.J. Thakkar, for the Petitioner : A.S. Jaiswal, for the Respondent
Anoop V. Mohta, J. :
The present petition is against an order whereby respondent No. 1 refused to exercise jurisdiction under s. 273A of the IT Act, 1961 (for short “Act”) for waiver of interest under ss. 139(8) and 217 of the Act for income-tax asst. yrs. 1983-84 to 1985-86. The petitioner being co-owner received rental income from the property during the relevant years. The petitioner voluntarily filed his (sic-her) income-tax returns for the above years before receipt of any notice under s. 139(2) or 148 of the Act. The petitioner filed a petition on 4th May, 1988 under s. 273A for waiver of interest charged and for waiver of penalties and restricted the same only for years 1983 to 1986. The petitioner had made full payment of taxes on the income as assessed but not paid interest as an application was filed for waiver of the interest. The respondent, however, by order dt. 24th May, 2001, rejected the petitionerâs application. This Court in Writ Petn. No. 311/1996, Vasantbhai Jethalal Lathiwala vs. CIT [reported at (2008) 219 CTR (Bom) 564âEd.] elaborated the scheme and purpose of s. 273A of the IT Act in para Nos. 7, 9, 11 and 13 as under :
“7. The Division Bench of Bombay High Court in Laxman vs. CIT (1989) 75 CTR (Bom) 76 : (1988) 174 ITR 465 (Bom) has explained the scheme and purpose of the section in following words :
â12. On behalf of the respondent, it was contended that the power under s. 273A of the Act is purely discretionary in character and, under the circumstances, no interference in writ jurisdiction is called for. We find it difficult to accept this contention. Once the conditions required for exercise of discretion in any judicial or quasi-judicial proceedings are satisfied, exercise of discretion cannot be either arbitrary or capricious and has to be judicious and objective. When the power is given to a public authority for being used for the benefit of a class of persons and the conditions precedent for the exercise are well-defined, there is a duty to exercise such power and on failure to perform that duty, Courts are not only empowered but are duty-bound to interfere. In the instant case, refusal to exercise discretion is for no other reason than misconception of the scope of the power and hence a writ of mandamus can be issued directing the CIT to entertain the application and to proceed to exercise the discretion within the limits specified by law.â
9. The Bombay High Court in Anand B. Apte, L/H of Late Smt. Kamalaben B. Apte vs. CIT (2004) 188 CTR (Bom) 416 : (2004) 270 ITR 581 (Bom) further observed that s. 273A of the Act contemplates full and true disclosure made voluntarily and in good faith even though such a disclosure is made through belated returns. In that case, the application of waiver under s. 273(A) of the Act cannot be rejected on the ground that there was no voluntary disclosure, and thereby such order of CIT was quashed and set aside and remanded the matter to decide the application on merit.
11. In Sukhdev Hargopal Puri vs. Union of India & Ors. (2006) 200 CTR (Bom) 340 : (2005) 279 ITR 591 (Bom) this Court has considered the power of CIT to grant waiver as a one time measure can grant relief with regard to any number of assessment years based upon the s. 273A(3) of the Act.
13. …..It is necessary for the CIT to take into consideration all the material available on the record [Sangram Singh Mehta & Ors. vs. ITO & Ors. (2006) 200 CTR (Raj) 93 : (2008) 296 ITR 483 (Raj)].
” In the present case as the section itself provides that such an assessee can apply for waiver of interest and penalty and accordingly applied also. Therefore, merely because the interest amount was not paid but complied with all other elements as required the rejection of application on that ground, in our view, is not correct. The Department failed to prove that the application (sic-return) was filed only after service of notice. There is an affidavit to show that the petitioner never received any notice under s. 139 or such other section. The return was filed voluntarily disclosing the full facts and material. The burden lies upon the Department to show that the notices were duly served for the asst. yrs. 1983 to 1985 which they failed to discharge. In view of the affidavit of denial, detail material and evidence to support the case of service, which is missing in the present case. Therefore, we are of the view that there were no notices served before the voluntary disclosure of the income by the petitioner. Taking all these aspects into account, we are of the view that the impugned order dt. 24th May, 2001, for the asst. yr. 1983 to 1986 as restricted, need to be quashed and set aside. The respondents to pass order after giving full opportunity of hearing and reconsider the application filed by the petitioner in accordance with law. The matter is remanded accordingly. The petition is allowed to that extent only with no order as to costs.
[Citation : 326 ITR 82]