RAKESH KUMAR SHAW Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) Facts and submissions : Aggrieved by an order passed under Section 271D of the Income-tax Act, 1961, imposing penalty on account of violation of acceptance of loan in cash exceeding Rs. 20,000 prohibited-under Section 269SS, the petitioner had preferred an appeal under Section 246 of the Income-tax Act. He has also made an application under Section 249, Sub-section (3), for admission of the appeal, which was preferred beyond the limitation provided in Sub-section (2) of Section 249 . This has since been dismissed by the Commissioner of Income-tax. This order has since been challenged before this court on various grounds, particularly, on the ground that the order is perverse and this court should interfere with the same. Relying on Section 273B, he contends that the failure to comply with Section 269SS was supported by reasonable cause and as such no penalty could be imposed upon the petitioner.

(2.) Mr. Shome, learned counsel for the respondent, on the other hand, points out that there is no merit since there was delay of about three years and that there was a reminder, despite which the appeal was not preferred within time. He also points out from the impugned order that there is no perversity in it. According to him, the authority can decide the matter one way or the other. The second ground he has taken is that the order is appealable under Section 253 of the Income-tax Act before the Appellate Tribunal. Therefore, this court cannot entertain this writ petition in exercise of its writ jurisdiction. The question involves element of fact, which this court cannot undertake in exercise of writ jurisdiction. Therefore, the petition should be dismissed.

(3.) Learned counsel for the petitioner relied on two decisions, viz., in the case of Whirlpool Corporation v. Registrar of Trade Marks, and Appropriate Authority v. Smt. Sudha Patil, to contend that in case of perversity and illegal exercise of jurisdiction and non-consideration of material facts and documents, this court can entertain the writ petition.