Joginder Singh v. The Commissioner Of Income Tax, Amritsar

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.5702 of 1994 Date of Order: 19.08.2013 Joginder Singh ...Petitioner Versus The Commissioner of Income Tax, Amritsar. ..Respondent CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MR. JUSTICE DR. BHARAT BHUSHAN PARSOON Present:Mr. Varun Baanth, Advocate, forMr. Ramesh Kumar, Advocate,for the petitioner Mr. Denesh Goyal, Advocate,for the respondent. RAJIVE BHALLA, J (Oral) The petitioner prays for issuance of a writ of certiorariquashing order dated 16.12.1993 (Annexure P-3), whereby theCommissioner of Income Tax, has while granting relief for the assessmentyear 1985-86, 1986-87 and 1987-88, declined similar relief for theassessment year 1988-89. Counsel for the petitioner submits that the Commissioner ofIncome Tax, has while exercising of power under Section 273-A of theIncome Tax Act, 1961 (hereinafter referred to as 'the Act') waived penaltyfor assessment years 1985-86 to 1987-88 but declined similar relief forassessment year 1988-89, without any tenable or tangible reason. Commissioner of Income Tax and as the discretion so exercised is legal and valid, the writ petition may be dismissed. We have heard counsel for the parties and perused theimpugned order. Admittedly, land belonging to the petitioner was compulsorilyacquired, under the Land Acquisition Act, 1894. On receipt ofcompensation, the petitioner filed returns of income for assessment years1985-86 to 1987-88 on 29.11.1991 and for assessment year 1988-89 on26.02.1993. The returns were filed without any notice under Section 139(2) or 148 of the Act. The returns were accepted and no addition wasmade 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 nondeposit of advance tax. The petitioner filed a petition under Section 273-Aof the Act, by pleading that as he had made voluntary disclosure, theinterest and penalty may be waived. The Commissioner waived penalty forassessment years 1985-86 to 1987-88 and reduced interest to 50% butrejected the claim with respect to assessment year 1988-89. A perusal of the impugned order reveals that the only reasonassigned for declining relief for assessment year 1988-89 is that the returnwas filed subsequently. Admittedly, returns for all relevant years were filedlate and without payment of advance tax. The reason assigned whileaccepting waiver of penalty and reducing interest by 50% for assessmentyears 1985-86 to 1987-88, applies equally to assessment year 1988-89.The Commissioner has, therefore, erred in drawing a distinction betweenthe returns and declining relief for 1988-89. Even otherwise, the non-obstante clause contained in Section 273-A of the Act, required theCommissioner 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 Civil Writ Petition No.5702 of 1994 invited penalty and interest was irrelevant, while deciding a petition underSection 273-A of the Act. In this view of the matter, we have no hesitation inholding that the impugned order suffers from an error of jurisdiction thatwould require rectification. As a consequence, we allow the writ petition, modify orderdated 16.12.1993, by holding that the petitioner is entitled to the same relieffor assessment year 1988-89 as has been granted for assessment years1985-86 to 1987-88. No order as to costs. (RAJIVE BHALLA) JUDGE August 19, 2013nt (DR. BHARAT BHUSHAN PARSOON) JUDGE