BUILDERS Vs. AGGARWAL R B L CIT

JUDGEMENT

(1.) RULE. Mr. M.J. Thakore appears and waives service of rule on behalf of the respondents. In the facts and circumstances of the case, the petitions are taken up for final hearing.

(2.) BOTH these petitions are filed for quashing and setting aside orders dt. 31st Oct., 1994 and 19th Jan., 1995 passed by the CIT, Gujarat III, Ahmedabad, in so far they do not waive interest and penalty in their entirety levied on the petitioners by directing the respondents to waive interest and penalty totally.

(3.) IN our opinion, submission of Mr. Soparkar is well founded. No doubt, s. 273-A confers discretionary power on the respondent to waive interest and penalty on fulfilment of certain conditions. At the same time, however, it cannot be gainsaid that such discretionary power requires to be exercised judicially, judiciously and on sound principles. An officer cannot, at his sweet will, arbitrarily grant power of waiver. Again, the power is coupled with duty and when conditions for exercise of such powers are established, the authority cannot refuse to exercise it. IN the instant cases, it is the assertion of the petitioners, not refuted by the respondent, that the requisite conditions were present. The respondent himself has granted benefit by reducing interest and penalty partly. He, however, did not apply his mind and no reason/ground whatsoever has been recorded as to why he did not grant the prayer of the petitioners in its entirety. The impugned orders, hence, suffer from non-application of mind. The point is also concluded by a decision of the apex Court as well as of this Court. The petitions, therefore, require to be allowed by quashing the impugned orders and by directing the respondent to pass fresh orders in accordance with law.