PESTON PADAMJI GINWALLA Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) The petitioner, PESton Padamji Ginwalla, is a practising advocate of this court. Having professional income the petitioner has to file his return by the 31st July of every year under the provisions of the I.T. Act, 1961 (hereinafter referred to as the "Act"). For the assessment years 1976-77, 1977-78 and 1978-79, the petitioner made some delay in filing the returns, the said returns having been filed in the month of January of the years 1977, 1978 and 1979. The Revenue, accordingly, charged interest for the said years under the provisions of Section 139(8) of the Act. The petitioner filed an application for waiver of the interest and Sri S. S. Singh, the AAC, Range III, Calcutta, by an order dated December 29, 1980, rejected the petitioner's application holding, inter alia, that the petitioner was a habitual defaulter in filing the returns. Against this order the petitioner preferred another application under Section 264 of the Act before the Commissioner of the same circle. Sri G.A. James, the Commissioner of Income-tax, by an order dated March 11, 1982, held the petitioner's revisional application under Section 264 of the Act to be not maintainable as, according to him, the petitioner should have sought his relief under Section 278A of the Act. These two orders, copies whereof are annexs. 'G' and 'H' to the petition, are the subject-matter of challenge in this rule.

(2.) I have heard Mr. Arijit Chowdhury on behalf of the petitioner and Mr. Ajit Sengupta on behalf of the Revenue. It is not disputed that for some previous assessment years the petitioner's application for waiver of interest had been allowed by the Revenue and for the assessment year 1975-76, the petitioner had made an application for waiver of interest under Section 273A of the Act and had obtained the relief. The Commissioner in passing the order dated March 11, 1982, apparently overlooked the provision of Sub-section (3) of Section 273A of the Act by virtue of which an assessee can get relief under the section only once whether the assessment relates to one or more assessment years. The petitioner having got the relief once for a particular year naturally is not entitled to get the relief under Section 273A of the Act for the assessment years in respect of which the application under Section 264 of the Act had been filed before the Commissioner.

(3.) In the aforesaid circumstances, I dispose of the rule on the following terms : The order dated December 29, 1980, passed by the IAC and the order dated March 11, 1982, passed by Sri G.A. James, Commissioner, are quashed and shall not be given effect to. The Commissioner will hear the applications of the petitioner under Section 264 of the Act in accordance with law after giving the petitioner or his representative an opportunity of being heard. Till such applications are heard and disposed of by the Commissioner, the tax recovery proceedings instituted against the petitioner in respect of the aforesaid assessment years and as mentioned in para. 4 of the writ petition shall remain stayed and shall abide by whatever orders the Commissioner passes after rehearing the petitioner.