G VENKATAESWARAN Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS writ petition is filed to issue a writ of certiorarified mandamus calling for the records of the respondent in No. C. No. 1543-(2-A) 1 of 1989-90 CENT-1, dated May 15, 1990, and quash the same and direct the respondent to consider the case of the petitioner under Section 273A(4) of the Income-tax Act, 1961.

(2.) THE case of the petitioner is that the petitioner is an assessee under the Income-tax Act in File No. 47-068-PV-3811 of Central Circle X(1), Madras. THE petitioner has filed a return showing a loss of Rs. 70,829 for the assessment year 1985-86. When the assessment proceedings were taken by the Income-tax Officer, the officer held that the gifts received by the petitioner totalling to Rs. 1,27,48,325 cannot be accepted by the Department as there were a number of contradictory statements by the donors. Further, the petitioner has filed a revised return offering the entire gift totalling to Rs. 1,27,48,325 as taxable income. THE petitioner had also paid the taxes in full. It has also been pointed out that the revised return has been filed with a view to co-operate with the Department and settled the matter amicably. THE petitioner is under the impression that the penalty leviable would be waived if the taxes are paid. A penalty of Rs. 1 crore has been levied under Section 271(1)(c) of the Income-tax Act. An appeal has been preferred before the Commissioner of Income-tax which was pending at the time of proceedings. THE petitioner applied to the Commissioner of Income-tax for waiver of penalty on October 19, 1989, under Section 273A of the Income-tax Act. 1961, and he contended as follows :

(3.) RELYING upon the above judgment, it could be said that in the present case also, there was no evidence to show that the assessee did not co-operate with the Income-tax Officer in completing the assessment either by resorting to litigation and obstruction or by evasive tactics in completing the assessment. It also has to be seen that the Commissioner has brushed aside the various relevant and germane submissions put forward by the petitioner-assessee in support of his plea that non-exercise of power under Section 273A(4) of the Act would result in genuine hardship to the assessee. In view of the above, it could be said that the Commissioner has failed to exercise his power under Section 273A(4) of the Act. RELYING upon the above judgments, the impugned order passed by the respondent is quashed and a direction shall however be issued to the respondent to dispose of the application of the petitioner filed under Section 273A(4) of the Act, afresh, in accordance with law and in the light of the observations, made, within two months from the date of receipt of copy of this order.