OM PRAKASH BHATIA Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) The present Rule was issued on 6th of April, 1979. No interim order was passed. It appears from the materials on record that the order dated 27th February 1979 under section 273A of the Income tax passed by the respondent No. 2, the Commissioner of Income tax, West Bengal-IX, Calcutta for the Assessment Years 1967-68 to 1971-72 and to command the respondents to refund to the petitioner the income-tax of Rs. 1,14,189/- paid under a mistake of law in respect of the Assessment Years 1967-68, 1968-69 and 1969-70 and other consequential reliefs on the ground that it was incumbent upon the respondent No. 2 to exercise his discretion to waive interest in a proper judicial manner inasmuch as the conditions precedent as laid down in section 273A(i) were fulfilled. It is stated that the respondent No 2 ignored the concept of law as set in section 273A and made colorable exercise of its powers on consideration of irrelevant factors. It is alleged that in view of the fact that the explanation in section 273A(1) of the said Act clearly lays down as criterion to attract the provisions of section 271(1) (c) when at least a prima facie satisfaction of the Competent Authority like the Income Tax Officer, the order of the respondent No. 2 is illegal and without jurisdiction.

(2.) Mr. Sanjay Bhattacharjya, Learned Advocate appearing for the petitioner has specially drawn the attention of the Court to paragraphs Nos. 11 and 12 of the writ petition and the scope of section 271(1) (i) and section 273A of the Income Tax Act. He has submitted that there is a blanket power given to the Commissioner of Income-tax to waive or reduce the amount of any penalty payable by the assessee if the Commissioner is satisfied otherwise it would cause genuine hardship to the assessee having regard to the circumstances of the case and if the Commissioner of Income Tax is satisfied with the assessee who has co-operated in any enquiry relating to the assessment of recovery of- any amount due from such assessee and necessary orders can be passed accordingly.

(3.) Mr. Sanjay Bhattacharjya has also drawn the attention of the Court to a number of decisions reported in 174 ITR Page 465 (Laxman vs. Commissioner of Income Tax, Bombay), 114 ITR Page 832 (Cochin Company vs. Commissioner of Income Tax, Kerala), 141 ITR Page 454 (Jagannath Prasad Srivastava vs. Commissioner of Income Tax, Kanpur) and 115 ITR Page 61 (Jakhodia Brothers vs. Commissioner of Income Tax & Anr. (All.). He has strongly argued that in view of the fact that even any proceedings before the respondent No.2 under section 273A of the Act, the respondent No. 1 gave a categorical report submitting that the petitioner fulfilled the preconditions for obtaining and enjoying the benefits of section 273A of the said Act the respondent No. 2 ought not to have rejected the petition upon reasons which are otherwise unwarranted in Law. It was beyond the competence authority and jurisdiction of the respondent No. 2 to observe and hold that the respondent No. 1 was not justified in dropping the proceedings under section 271 (1) (a) of the said Act inasmuch as power of applying the said section is: given exclusIve1y to the respondent No. 1 and whose discretion cannot be substituted and/or overruled by the respondent, the Commissioner of Income Tax.