S.T.S. ENTERPRISES Vs. ASSSTT. CIT

JUDGEMENT

(1.) The petitioner is challenging Ext. P5 whereunder the Commissioner has rejected an application for waiver of penalty filed by the petitioner under section 273A of the Income Tax Act for the assessment year 1990-91. The Commissioner rejected the petitioner's application on the ground that the petitioner does not satisfy the conditions required for waiver namely, section 273A(1)(b) of the Income Tax Act. Even though counsel for the petitioner submitted that the Commissioner, has rejected application on account of non-filling of appeal by the petitioner against penalty order, I do not think the Commissioner was led by. the said fact because he has considered and decided the claim of waiver on merits, even though there is an observation in the order that petitioner has not chosen to file appeal against the penalty levied under section 271(1)(c) of the Act. Moreover, on going through the assessment and penalty orders, it is seen that after failing to prove cash credit in the name of one Sukumaran the petitioner later changed the stand and claimed that the creditor was another person. Though that person was examined in person, the claim could not be established. Therefore, it is not a case where the petitioner co-operated with the department, but contested the matter to the extent possible and, therefore, conditions for waiver of penalty are not satisfied. It is also seen that the penalty levied is the minimum penalty and apart from the penalty, petitioner is not liable to pay any tax as the net result under the assessment order is still a loss. In the circumstances, OP is devoid of any merit and is dismissed.