SARITA JINDAL Vs. CHIEF COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) HEARD Sri R.R. Agrawal, learned counsel for the petitioner and Sri Shambhu Chopra, learned standing counsel appearing on behalf of respondents.

(2.) PASSED under s. 273A of the IT Act (hereinafter referred to as the "Act") rejecting the application for the waiver of approval as contemplated under s. 273A(2)(b) of the Act.

(3.) LEARNED counsel for the petitioner submitted that the CIT, Moradabad had rejected the waiver application merely on submitted that the Chief CIT, Bareilly had refused to grant approval merely on the ground that the revised return was not voluntary, without considering the report of the ITO in which he had stated that the assessee made the disclosure voluntarily and the assessment was completed on the revised return disclosing the income of tax Rs. 8,59,070 and assessee co -operated in the assessment proceeding and the entire taxes and interest had been paid and, therefore, the order of the Chief CIT, Bareilly refusing to grant approval is a case of non -application of mind, without considering the material on record and, therefore, liable to be set aside. He further submitted that since the discretion, which is to be exercised by the CIT under s. 273A of the Act, for granting the waiver is subject to the approval by the Chief CIT as contemplated under s. 273A(2)(b) of the Act, and refusal to grant the approval affects the right of the assessee, thus before refusing to grant the approval opportunity of hearing should be given to the petitioner. In support of the contention he relied upon the Division Bench decision of this Court in the case of S.K. Traders vs. Addl. Commr. & Anr. (2009) 26 VST 601 (All) : 2008 UPTC 392 and the decision of the apex Court in the case of Rajesh Kumar & Ors. vs. Dy. CIT (2006) 206 CTR (SC) 175 : (2006) 287 ITR 91 (SC) : (2007) 2 SCC 181 which has been approved by the Larger Bench of the apex Court in the case of Sahara India (Firm) vs. CIT & Anr. (2007) 209 CTR (SC) 20 : (2007) 289 ITR 473 (SC).