High Court Of Rajasthan : Jaipur Bench
Sangram Singh Mehta & Ors. vs. Income Tax Officer & Ors.
Sections 217, 220(2), 271(1)(c), 273A
Asst. Year 1966-67
Dalip Singh, J.
Civil Writ Petn. No. 6210 of 1991
17th November, 2005
Counsel Appeared
N.M. Ranka with J.K. Ranka, for the Petitioners : J.K. Singhi & Anuroop Singhi, for the Respondents
JUDGMENT
Dalip Singh, J. :
In this writ petition, the petitioner has challenged among others the order dt. 11th Sept., 1991 (Annex. 1) which is an order passed on the application under s. 154 r/w ss. 220(2A) and 273A of the Income-tax Act, 1961 (hereinafter referred to as “the IT Act”), moved by the assesseepetitioner.
2. The facts need not be mentioned in detail. Suffice it to say that there was a demand of tax, interest and penalty against the petitioner, Sangram Singh Mehta for the asst. yr. 1966-67. The petitioner was unable to meet the said demand on account of various reasons mentioned in the writ petition and subsequently the petitioner moved an application dt. 7th March, 1988 (Annex. A) before the CIT, Jaipur, for waiver of interest under ss. 217 and 220 of the IT Act. The case of the petitioner is that on the said application after deliberation, the CIT, Jaipur, on 29th March, 1988 sent a communication to the ITO, A-Ward, Jaipur, which is at p. 127 and which was filed along with the additional affidavit on 14th Sept., 2005 before this Court which reads as under : “Office of the CIT, Jaipur. Dt. 29th March, 1988. No. J/IT/VD/220(2)/87-88/3369 The ITO, A-Ward, Jaipur. Sub : Waiver of interest charged under ss. 217 and 220(2) and penalties—Shri Sangram Singh Mehta, Jaipur-Asst. yr. 1966-67. I am directed to refer your letter No. ITO/A-Ward/Dossier/87-88/334, dt. 25th March, 1988 regarding waiver of interest and penalties in the case of Shri Sangram Singh Mehta of Jaipur for the asst. yr. 1966-67. In view of the arrear clearance drive and the fact that the demand is very old and pertains to asst. yr. 1966-67 and considering the proposal of ITO and the IAC’s endorsement that the assessee had rendered co-operation to the Department in terms of cl. (II/III) of sub-s. (2A) of s. 220 of the IT Act, the worthy CIT has agreed to consider the proposal sympathetically for waiver of interest and penalties as per rules. You are, therefore, requested to please send the cheque to the bank immediately for collection. Formal order for waiving the interest and penalties will be passed after the cheque is cleared and the amount is collected. Sd/(D.P. Govil) ITO (Judl.) For CIT, Jaipur.”
The petitioner further contended that in view of the aforesaid, since the financial year was coming to a close on 31st March, 1988 and the cheque would not be realised before the said date, on the request of the IT authorities, the petitioner submitted a cash challan for the deposit of the amount of Rs. 49,349 on 30th March, 1988 and the same was deposited after being duly verified and authorised by the IT authorities on 30th March, 1988 itself. Thus, the case of the petitioner is that the petitioner acted on the basis of the order that was sent on 29th March, 1988 by the office of CIT, Jaipur, and was waiting for formal order for waiving of the penalty and interest as has been indicated in the said letter that these would be passed after the cheque is cleared and the amount is collected. However, no such order was passed in favour of the petitioner. The petitioner then submitted an application under s. 154 of the IT Act. The petitioner further moved fresh applications (Annexs. G & H) on 20th Jan.,1989 praying for withdrawing the orders dt. 3rd Jan., 1989 (Annexs. E & F) in the light of the order dt. 29th March, 1988. By the orders dt. 3rd Jan., 1989 (Annexs. E & F) the applications dt. 7th March, 1988 were rejected by the respondents. In the applications dt. 20th Jan., 1989, the petitioner referred to the order of the CIT, dt. 29th March, 1988 and prayed that the formal orders be passed and the orders dt. 3rd Jan., 1989 be set aside on various grounds as mentioned in the application. On the applications dt. 20th Jan., 1989 (Annexs. G & H) filed by the petitioner, the order, Annex. I, was passed on 11th Sept., 1991. The said order has been passed firstly on the ground refusing to set aside the order dt. 3rd Jan.,1989 stating that no opportunity of personal hearing was required to be given and if such an opportunity is not provided, the order cannot be termed to be void. On the merits, however, it was stated in para 2 of the said order that no assurance, as claimed by the petitioner, was given by the Department and that whatever assurance was given was only to consider the application for waiver sympathetically provided the assessee’s case was found to be covered by the relevant provisions of the IT Act.
It is this order, Annex. I, dt. 11th Sept., 1991 which the petitioner has challenged in the present writ petition. The petitioner in paras 12 and 13 of the writ petition has given the factual position with regard to the assurance being given to the petitioner by the CIT and the consequential order dt. 29th March, 1988 giving details of the said letter which was written by the office of the CIT to the ITO. This had become necessary because in the order, Annex. I, dt. 11th Sept., 1991 the respondents had clearly stated that no assurance had been given to the petitioner; even no reference to the letter of the CIT dt. 29th March, 1988 was made in the said order. The submission of the learned counsel for the petitioner inter alia, is that CIT while passing the order, Annex. I, dt. 11th Sept., 1991 had not in fact decided the case in the light of the order dt. 29th March, 1988 and in case the said order dt. 29th March, 1988 had been perused by the CIT, probably the order dt. 11th Sept., 1991 would not have been passed. A reply to the aforesaid contentions in paras 12 and 13 was given by the respondents wherein they denied that there was any settlement arrived at. It was further denied that a cheque for Rs. 49,349 was only to be encashed upon the waiver of interest in full. In reply to para 13 of the writ petition no reference has been made to the order dt. 29th March, 1988 to which the petitioner has made specific reference in the writ petition. On the contrary, the respondents have denied the contents of para 13 and have submitted the reply to the said paragraphs on the basis of the information best to their knowledge.
Since the bone of the contention between the parties in this writ petition was the letter dt. 29th March, 1988, after hearing the parties this Court on 13th Jan., 1998 passed the following order :
“Hon’ble Mr. Rajendra Saxena, J. 13th Jan., 1998. Shri N.M. Ranka, senior advocate with Shri R.K. Yadav, for the petitioners. Shri Amod Kasliwal, for the respondents. The petitioners vide para No. 13 of the writ petition have specifically pleaded that the respondent No. 2 vide his letter No. J/IT/VD/220(2)/12/87-88/3369, dt. 29th March, 1988, to the ITO, A-Ward, Jaipur, had instructed to send the cheque to the bank immediately for collection and assured for making formal order for waiving interest and penalties after the cheque was cleared. The respondents in their reply denied this fact vide para No. 13. The petitioners have reiterated the said pleadings in their rejoinder. In such circumstances, the learned counsel for the petitioner is directed to produce the original record including the aforementioned letter dt. 29th March, 1988. The respondents shall also permit petitioner No. 1, Shri Sangram Singh Mehta, to inspect the record in this case in their office within two weeks. Put up on 3rd March, 1998 for final disposal. Sd/-” After the aforesaid order was passed by this Court, the petitioner inspected the record and prepared the inspection note on the basis of which the additional affidavit along with certain documents and annexures was filed on 14th Sept., 2005. Along with the said additional affidavit the letter dt. 29th March, 1988 sent by the office of the CIT, Jaipur, to the ITO, A-Ward, Jaipur, on the subject of waiver of interest charged under ss. 217 and 220(2) and penalties in the case of assessee, Sangram Singh Mehta, for the asst. yr. 1966-67 was also produced. The said letter had already been referred to above. To the additional affidavits and the documents which were produced by the petitioner, the respondents have not filed any counter-affidavit. Thus, the fact remains that the genuineness of the letter dt. 29th March, 1988 and its being on record available with the respondents is not in dispute. That being so, in my opinion, the order dt. 11th Sept., 1991 suffers from an error apparent on the face of the record. In the order it has been stated that no assurance had been given to the petitioner by the Department or the CIT. No reference of the letter dt. 29th March, 1988 has been made in the order impugned dt. 11th Sept., 1991. Hence, it cannot be said that the contents of the said letter have been taken note of while passing the order dt. 11th Sept., 1991. Since the order dt. 11th Sept., 1991 has been passed without reference to the order dt. 29th March, 1988, the same requires reconsideration after being set aside.
In view of the aforesaid, I am of the opinion that the order dt. 11th Sept., 1991, Annex. I, passed by the CIT deserves to be set aside with a direction to the respondents to decide the application filed by the petitioner afresh taking into consideration the facts mentioned in the writ petition and additional affidavit regarding the assurance as well as the letter dt. 29th March, 1988 written by the CIT to the ITO, A-Ward, Jaipur, in relation to the waiver of penalty and interest on the tax amount in case of the petitioner and the fact that on such an assurance the petitioner deposited the amount in cash on the request of the authorities. Consequently, this writ petition is allowed. The order dt. 11th Sept., 1991, Annex. I, is set aside. The case is remanded to the CIT, Jaipur, for deciding the applications dt. 20th Jan., 1989 filed by the petitioner taking into account the facts relating to the passing of the order dt. 29th March, 1988 and subsequent facts regarding the deposit of amount by cash challan on 30th March, 1988, as has been mentioned above.
[Citation : 296 ITR 483]
