JAGANNATH PRASAD SRIVASTAVA Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) ON 19th August, 1972, petitioner, Jagannath Prasad Srivastava, made an application seeking to disclose his income for the assessment years 1965-66 to 1972-73, and subsequently filed the requisite returns on 15th December, 1972. The petitioner also moved the Commissioner under Section 271 (4A) requesting him to waive the amount of penalty imposable on him under Sections 271(1)(a) and 273(b) and interest chargeable under Sections 139 and 217 of the I.T. Act. The Commissioner, vide his order dated 36th March, 1978, accepted the plea of the petitioner in so far as the assessment years 1969-70 to 1972-73 were concerned, but he refused to grant relief to him in respect of assessment years 1965-66 to 1967-68. To quote in his own words, reason given by the Commissioner for refusing relief to the petitioner in respect of the aforementioned years was as follows :

(2.) AGGRIEVED, the petitioner has approached this court for relief under Article 226 of the Constitution in so far as the aforementioned portion of the order of the Commissioner is concerned.

(3.) A perusal of the section shows that under it an exercise of the discretion for reducing or waiving the amount of penalty and interest specified therein is inhibited by the conditions like the Commissioner being satisfied that the assessee had filed the return voluntarily and that in certain cases the disclosure of the income has been made in a bona fide manner and in good faith and further that in all such cases the assessee had cooperated in any inquiry relating to the assessment of his income and had also paid or made satisfactory arrangements for payment of tax or interest payable in consequence of an order passed under the Act in respect of the relevant assessment year. The section nowhere provides that the discretion of the Commissioner to waive any amount of penalty or interest under Section 273A is barred merely because the assessee did not file his returns within the period prescribed either under Sub-section (1), (2) or (4) of Section 139 of the I.T. Act. It appears that although the Commissioner has recorded a finding that the returns filed by the assessee in respect of the years in question were voluntary, he did not apply his mind to other relevant factors for exercising discretion under Section 273A. The reason for which the Commissioner refused" to exercise discretion is not one which is contemplated by Section 273A of the I.T, Act. In this view we are fortified by a Division Bench decision of this court in the case of Jakhodia Brothers v. CIT [1978] 115 ITR 61 (All).