High Court Of Calcutta
Satish Kapoor vs. CIT & Ors.
Sections 273A, Art. 226
Asst. Year 1984-85, 1987-88, 1988-89, 1989-90, 1990-91
Pinaki Chandra Ghose, J.
Writ Petn. No. 428 of 1997
28th November, 2001
JUDGMENT
PINAKI CHANDRA GHOSE, J. :
This is an application filed by the petitioner challenging the orders dt. 20th Feb., 1996, and 30th July, 1996, passed by the respondent Nos. 1 and 2 refusing to waive the penalty under s. 271(1) (c)(iii) of the IT Act, 1961 (hereinafter referred to as “the said Act”), for the asst. yrs. 1984-85 and 1987-88 to 1990-91.
2. Facts of the case briefly are as follows : One Bishnu Narain Kapur, died intestate on 22nd March,1991, leaving behind the writ petitioner as one of his legal heirs. After the death of the said assessee, the petitioner was able to find out that some of the investments made by the assessee in different years and the income derived from such investments had not been disclosed by him in his returns. The writ petitioner voluntarily filed returns for the asst. yrs. 1984-85 and 1987-88 to 1990-91 and further requested the ITO (hereinafter referred to as “the ITO”) to reopen the assessments for the said assessments years under s. 147/148 of the said Act.
The writ petitioner further informed the ITO that the said deceased also failed to disclose some amounts for the asst. yrs. 1983-84, 1985-86 and 1986-87 and filed the returns for the said assessment years and duly paid tax aggregating to a sum of Rs. 38,832 for the said assessment years. Thereafter, the petitioner made an application before the respondent No. 1 for the asst. yrs. 198485, 1987-88 to 1990-91 and prayed for waiver of penalty leviable under s. 271(1)(c)(iii). On 20th Feb., 1996, the CIT disposed of the said application. The writ petitioner filed an application before the CIT on 23rd April, 1996, for rectification of the said order dt. 20th Feb., 1996, on the ground that all the conditions under s. 273A(1), were satisfied and the said matter was referred by the CIT before the Chief CIT. The Chief CIT specifically stated that no interference is required and accordingly on 30th July, 1996, CIT duly rejected the application for rectification.
3. Learned counsel appearing on behalf of the petitioner contended that under s. 273A two separate powers have been given by the legislature under ss. 273A(1) and 273A(4). He further contended that for the exercise of the powers under sub-s. (1), the requirement of obtaining previous approval of the Chief CIT is necessary when the disclosed income exceeds Rs. 5 lakhs and the requirement of previous approval is also necessary before passing of an order under sub-s. (4) of s. 273A where the amount of penalty exceeds Rs. 1 lakh. Therefore, according to him no permission and/or approval was required by the CIT to deal with the matter and accordingly he submitted that the CIT could not have sent the matter before the Chief CIT for his approval. Therefore, he contended that the act on the part of the said authorities is wholly and fully misconstruction of the said sections and they did not apply their minds properly. He further contended that it is not necessary for the assessee to show under s. 273A(1) that there is genuine hardship in order to obtain waiver of the penalty under s. 271(1)(c)(iii) and he further contended that the conditions fulfilled by the writ petitioner to get such benefit. He further contended that the CIT has sent the matter before the Chief CIT for waiving penalty. Therefore, according to him, such reference has been made by the CIT to the Chief CIT after he satisfied himself that the petitioner is entitled to get such benefit. He relied upon the judgments Mool Chand Mahesh Chand vs. CIT 1978 CTR (All) 193 : (1978) 115 ITR 1 (All) : TC 49R.1023; K. Ramulu & Bros. vs. CIT (1990) 185 ITR 517 (AP) : TC 49R.1041; Jaswant Rai & Anr. vs. CBDT (1998) 147 CTR (SC) 110 : (1998) 231 ITR 745 (SC) : TC 49R.394 and Laxman vs. CIT (1989) 75 CTR (Bom)
76 : (1988) 174 ITR 465 (Bom) : TC 49R.1004 and contended that the Court has power to interfere with the order passed by the authority who is passing such order in any judicial or quasi-judicial proceedings. Accordingly, he submitted that the said order should be set aside and the authority should be directed to exercise its power in accordance with law and to waive such penalty.
4. Learned counsel appearing on behalf of the respondents contended that the order dt. 20th Feb., 1996, is a speaking order. On 23rd April, 1996, the writ petitioner made an application under s. 154 of the said Act for rectification or reconsideration of the said order dt. 20th Feb., 1996. The said application under s. 154 of the said Act has also been disposed of by the CIT by passing a speaking and/or reasoned order. According to him, the writ application is not maintainable since the order passed by the CIT is an appealable order under s. 246(1)(ii) of the said Act. Without preferring any appeal, the petitioner filed an application under s. 273A praying, inter alia, for waiver of penalty under s. 271(1)(c)(iii) of the said Act. He further contended that the application under s. 154 of the said Act was filed against the order dt. 20th Feb., 1996, which was rejected on 30th July, 1996, by the CIT. The writ petitioner again filed such application under s. 154. In view of the fact that the application filed by the petitioner for waiving the interest cannot be treated as the order passed by the authorities as incorrect. He further contended that the order under s. 273A of the said Act has merged with the order passed under s. 154 of the said Act. Therefore, the said order is also appealable. The writ petitioner without availing such right cannot challenge the said order by way of this writ application. He further contended that the order is a speaking order and there is no reason to interfere with the same.
5. After hearing the parties and considering the facts and circumstances of this case, it appears that the petitioner has a right to prefer an appeal from the order passed by the authorities. The said order is also an appealable order which is not in dispute, in view of the said fact and furthermore, no grounds have been made out for the petitioner that the said authorities have passed such order without any jurisdiction. Accordingly, in my opinion, the petitioner has no right to file this writ application. The remedy of the petitioner is to prefer an appeal before the appropriate forum and not by way of this writ proceedings.
Accordingly, in my opinion, this application must fail and is hereby dismissed.
Decision in favour of Revenue
[Citation : 255 ITR 93]