Kerala H.C : The appellant was the petitioner in 0. P. No. 967 of 1982-A. He is an assessee to income-tax. For the asst. yr. 1978-79, the second respondent, the ITO, levied interest under s. 139(8)

Counsel Appeared

C.M. Devan, for the Petitioner : P.K.R. Menon, for the Respondent

K.S. PARIPOORNAN, J.:

The appellant was the petitioner in 0. P. No. 967 of 1982-A. He is an assessee to income-tax. For the asst. yr. 1978-79, the second respondent, the ITO, levied interest under s. 139(8) of the IT Act of a sum of Rs. 2,140 and a sum of Rs. 1,549 by way of interest under s. 215 of the Act. The total interest thus levied came to Rs. 3,689. The petitioner filed an application under s. 273A of the IT Act before the first respondent, the CIT, to waive the interest levied. It was rejected by exhibit P-3 order dated December 5, 1981. In the original petition, the challenge was against exhibit P-1 assessment order, levying interest under s. 139(8) as also s. 215 of the Act and against exhibit P-3 order as illegal and unsustainable. Narendran J. by judgment dated February 12, 1982, rejected the original petition on the ground that no grounds were made out for interference. The petitioner has come up in writ appeal.

We heard counsel for the appellant as also counsel for the Revenue. The only question argued before us was that the CIT erred in his interpretation of s. 273A(1) of the IT Act in holding against the assessee/appellant. Sec. 273A in so far as it is relevant in the instant case, is extracted hereinbelow: “273A. Power to reduce or waive Penalty, etc., in certain cases.—(1) Notwithstanding anything contained in this Act, the CIT may, in his discretion, whether on his own motion or otherwise,—… (iii) reduce or waive the amount of interest paid or payable under sub-s. (8) of s. 139 or s. 215 or s. 217 or the penalty imposed or imposable under s. 273, if he is satisfied that such person— … (c) in the case referred , in cl. (iii), has, prior to the issue of a notice to him under sub-s. (2) of s. 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 s. 148, voluntarily and in good faith made full and true disclosure of his income and has paid the tax on the income so disclosed.

The undisputed facts in this case are : the return for the asst. yr. 1978-79 was due on June 30, 1978. It was filed only on November 23, 1978. The tax, as per the return, was paid, on December 7, 1978. The disclosure in the instant case was made through the medium of a return. So, in this case, no question of issuing a notice under s. 139(2) or s. 148 of the Act can arise. The tax on the income disclosed was not paid along with the disclosure. It was fully paid long after the disclosure was made, i.e., on December 7, 1978. On these premises, we have to hold that the assessee failed to pay the tax on the income so disclosed prior to the issue of notice under s. 139(2) or s. 148 of the Act (in this case, along with the return). In exhibit P-3, the CIT has expressed the said view in rejecting the application filed by the assessee and in denying the relief prayed for under s. 273A of the Act.

We are of the view that exhibit P-3 is justified in law and no interference is called for in this writ appeal. The writ appeal is dismissed.

[Citation : 173 ITR 404]