Om Prakash Bhatia (alias O.P. Bhatia) vs Income Tax Officer and Others

Susanta Chatterji, J.—The present rule was issued on April 6, 1979. No interim order was passed. It appears from the materials on record that the order dated February 27, 1979, u/s 273A of the Income Tax Act passed by 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 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(1) were fulfilled. It is stated that respondent No. 2 ignored the concept of law as set in Section 273A and made colourable 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 a 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 respondent No. 2 is illegal and without jurisdiction, (sic).

Mr. Sanjay Bhattacharyya, 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, for, 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 that the assessee who has co-operated in any enquiry relating to the assessment or recovery of any amount due from such assessee then necessary orders can be passed accordingly.

Mr. Sanjay Bhattacharyya has also drawn the attention of the court to a number of decisions in Laxman Vs. Commissioner of Income Tax, ; Paras Bhan Sadh Vs. Commissioner of Income Tax and Another, ; Jagannath Prasad Srivastava Vs. Commissioner of Income Tax, and JAKHODIA BROTHERS Vs. COMMISSIONER OF Income Tax AND ANOTHER., He has strongly argued that, in view of the fact that even in proceedings before respondent No. 2 u/s 273A of the Act, respondent No. 1 gave a categorical report submitting that the petitioner fulfilled the pre-conditions, for obtaining and enjoying the benefits of Section 273A of the said Act, 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 respondent No. 2 to observe and hold that respondent No. 1 was not justified in dropping the proceedings u/s 271(1)(a) of the said Act inasmuch as the power of applying the said section is given exclusively to respondent No. 1 and whose discretion cannot be substituted and/or overruled by the respondent, the Commissioner of Income Tax.

Mr. Nandalal Pal, learned advocate appearing for the contesting respondents, has urged that the impugned actions on the part of the respondent authority is justified. There is nothing of irregularity and illegality. The petitioner cannot obtain the reliefs as prayed for.

Considering the lengthy submissions made on behalf of the respective parties, it appears that Section 271(1)(a) of the Income Tax Act provides, inter alia, that if the Income Tax Officer or the Apellate Assistant Commissioner or the Commissioner (Appeals) in the course of any proceedings under this Act, is satisfied that any-person has failed to furnish the return of total income which he was required to furnish under Sub-section (1) of Section 139 or by notice given under Sub-section (2) of Section 139 or Section 148 or has failed to furnish it within the time allowed and in the manner required by Sub-section (1) of Section 139 or by such notice, as the case may be, he may direct such person shall pay, by way of penalty, certain amounts. It is, however, clear that there is power to reduce or waive penalty in certain cases u/s 273A of the Income Tax Act which envisages that:

"273A. (1) Notwithstanding anything contained in this Act, the Commissioner may, in his discretion, whether on his own motion or otherwise,--

(i) reduce or waive the amount of penalty imposed or imposable on a person under Clause (i) of Sub-section (1) of Section 271 for failure, without reasonable cause, to furnish the return of total income which he was required to furnish under Sub-section (1) of Section 139 ; or

(ii) reduce or waive the amount of penalty imposed or imposable on a person under Clause (iii) of Sub-section (1) of Section 271 ; or

(iii) reduce or waive the amount of interest paid or payable under Sub-section (8) of Section 139 or Section 215 or Section 217 or the penalty imposed or imposable u/s 273,

if he is satisfied that such person -

(a) in the case referred to in Clause (i), has, prior to the issue of a notice to him under Sub-section (2) of Section 139, voluntarily and in good faith made full and true disclosure of his income ;

(b) in the case referred to in Clause (ii), has, prior to the detection by the Income Tax Officer, of the concealment of particulars of income or of the inaccuracy of particulars furnished in respect of such income, voluntarily and in good faith, made full and true disclosure of such particulars ;

(c) in the cases referred to in. Clause (iii), has, prior to the issue of a notice to him under Sub-section (2) of Section 139, or where no such notice has been issued and the period for the issue of such notice has expired, prior to the issue of notice to him u/s 148, voluntarily and in good faith made full and true disclosure of his income and has paid the tax on the income so disclosed,

and also has, in all the cases referred to in Clauses (a), (b) and (c), co-operated in any enquiry relating to the assessment of his income and has either paid or made satisfactory arrangements for the payment of any tax or interest payable in consequence of an order passed under this Act in respect of the relevant assessment year.

Explanation.--For the purposes of this sub-section, a person shall be deemed to have made full and true disclosure of his income or of the particulars relating thereto in any case where the excess of income assessed over the income returned is of such a nature as not to attract the provisions of Clause (c) of Sub-section (1) of Section 271."

Regard being had to the materials on record, the petitioner cannot submit that the Commissioner has acted without jurisdiction and that the writ court will come to his rescue.

The concept is now very clear that a writ court is not sitting in appeal upon the decision of a statutory authority. The writ court has to examine the decision-making process. Unless the order complained of is without jurisdiction or in excess of jurisdiction or the same is perverse causing manifest injustice or the order is arbitrary, unfair, the writ court will be slow to interfere in the matter-Having gone through the materials on record and the reasons assigned in passing the impugned orders, this court does not find that there is any irregularity or illegality or that there is any lack of jurisdiction to adjudicate on the matter. This court is of the view that the present writ petition is thoroughly misconceived and that there is no merit in it.

For the foregoing reasons, the writ petition fails. The rule is discharged. All interim orders are vacated. There will be no order as to costs.