IT: Commissioner could not decline waiver of penalty when on similar facts in earlier years it had granted said relief
[2013] 38 taxmann.com 302 (Punjab & Haryana)
HIGH COURT OF PUNJAB AND HARYANA
Joginder Singh
v.
Commissioner of Income-tax, Amritsar*
RAJIVE BHALLA AND DR. BHARAT BHUSHAN PARSOON, JJ.
CIVIL WRIT PETITION NO. 5702 OF 1994
AUGUST 19, 2013
Section 273A of the Income-tax Act, 1961 - Penalty - Reduction or waiver of [Delayed filing of return] - Assessment years 1985-86 to 1988-89 - Assessee received compensation against compulsory acquisition of his land - Thereafter, he filed his returns of income belatedly for assessment years 1985-86 to 1987-88 and 1988-89 - Returns were accepted and no addition was made - However, penalty and interest were imposed for delayed filing of returns and for non-depositing of advance tax - On appeal, Commissioner waived penalty and reduced interest to 50 per cent for assessment years 1985-86 to 1987-88 but he declined relief from penalty with respect to assessment year 1988-89 on ground that return was filed subsequently - Whether since returns for all relevant years were filed late, reason assigned while accepting waiver of penalty for assessment years 1985-86 to 1987-88, would equally apply to assessment year 1988-89 and, thus, Commissioner was not justified in declining relief to assessee - Held, yes [Para 6] [In favour of assessee]
Varun Baanth and Ramesh Kumar for the Petitioner. Denesh Goyal for the Respondent.
ORDER
Rajive Bhalla, J. - The petitioner prays for issuance of a writ of certiorari quashing order dated 16.12.1993 (Annexure P-3), whereby the Commissioner of Income Tax, has while granting relief for the assessment year 1985-86, 1986-87 and 1987-88, declined similar relief for the assessment year 1988-89.
2. Counsel for the petitioner submits that the Commissioner of Income Tax, has while exercising of power under Section 273-A of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') waived penalty for assessment years 1985-86 to 1987-88 but declined similar relief for assessment year 1988-89, without any tenable or tangible reason.
3. Counsel for the respondent submits that as disclosure for the assessment year 1988-89 was made after returns for the years 1985-86 to 1987-88, were filed, relief has been rightly declined to the appellant. It is further submitted that discretion to waive penalty/interest, rests with the Commissioner of Income Tax and as the discretion so exercised is legal and valid, the writ petition may be dismissed.
4. We have heard counsel for the parties and perused the impugned order.
5. Admittedly, land belonging to the petitioner was compulsorily acquired, under the Land Acquisition Act, 1894. On receipt of compensation, the petitioner filed returns of income for assessment years 1985-86 to 1987-88 on 29.11.1991 and for assessment year 1988-89 on 26.02.1993. The returns were filed without any notice under Section 139 (2) or 148 of the Act. The returns were accepted and no addition was made but penalty and interest were imposed under Sections 271(1)(a), 271 (1)(c), 273(2)(b) and 209-A(1)(b) for delayed filing of returns and non deposit of advance tax. The petitioner filed a petition under Section 273-A of the Act, by pleading that as he had made voluntary disclosure, the interest and penalty may be waived. The Commissioner waived penalty for assessment years 1985-86 to 1987-88 and reduced interest to 50% but rejected the claim with respect to assessment year 1988-89.
6. A perusal of the impugned order reveals that the only reason assigned for declining relief for assessment year 1988-89 is that the return was filed subsequently. Admittedly, returns for all relevant years were filed late and without payment of advance tax. The reason assigned while accepting waiver of penalty and reducing interest by 50% for assessment years 1985-86 to 1987-88, applies equally to assessment year 1988-89. The Commissioner has, therefore, erred in drawing a distinction between the returns and declining relief for 1988-89. Even otherwise, the non-obstante clause contained in Section 273-A of the Act, required the Commissioner to consider factors referred to in Section 273-A of the Act, and to no other factors. The subsequent filing of the return having already invited penalty and interest was irrelevant, while deciding a petition under Section 273-A of the Act. In this view of the matter, we have no hesitation in holding that the impugned order suffers from an error of jurisdiction that would require rectification.
7. As a consequence, we allow the writ petition, modify order dated 16.12.1993, by holding that the petitioner is entitled to the same relief for assessment year 1988-89 as has been granted for assessment years 1985-86 to 1987-88. No order as to costs.
POOJARegards
Prarthana Jalan
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