Mohinder Singh v. Commissioner Of Income Tax,Patiala

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. --- Civil Writ Petition No. 9811 of 1993Date of decision: 21.2.2011 Mohinder Singh Versus --- Petitioner Commissioner of Income Tax,Patiala --- Respondent CORAM:HON’BLE MR. JUSTICE ADARSH KUMAR GOELHON’BLE MR. JUSTICE AJAY KUMAR MITTAL --- Present:Mr. Rajesh Garg, Advocatefor the appellant-assessee. Mr. Tejinder K. Joshi, Standing Counsel for the respondent-Revenue. --- AJAY KUMAR MITTAL, J. The petitioner seeks a writ of mandamus directing therespondent to consider his application dated 28.12.1987, moved underSection 273A of the Income Tax Act, 1961 (for short “the Act”), for waiverof the interest charged and the penalty leviable, relating to theassessment year 1987-88. The petitioner, who is a partner in the firm M/s. UnitedConstruction Company (Railways Division), filed returns of income for theassessment years 1984-85 to 1987-88 on different dates prior to issuingof notice under Section 139 or 148 of the Act making full and truedisclosure of his income. As per averments of the petitioner, he made payment of the tax assessed and the interest charged thereon inconsequence of assessments relating to the above assessment years.The assessing officer, however, initiated proceedings under Sections 271(1)(a) and 273 of the Act for late filing of the returns and also non-payment of advance tax, besides charging interest under Sections215/217 and 139(8) of the Act. The petitioner moved application underSection 273A of the Act for waiver of the interest charged and the penaltyleviable under Sections 271(1)(a) and 273 of the Act. According to thepetitioner, the other three partners of the firm made applicationscontaining similar prayer which were considered by the respondent, butvide order dated 31.3.1993, the respondent did not consider the claim ofthe petitioner for the assessment year 1987-88, notwithstanding the factthat he had furnished reply dated 28.1.1993 to the respondent assertingthat the provisions of Section 273-A of the Act no where provided thatapplication for seeking relief under Section 273A of the Act could beconsidered only for one assessment year if the returns were filed ondifferent dates. The petitioner also made a prayer that his claim for therelief relating to the assessment years 1986-87 and 1987-88 may beconsidered as the petition made by him for the assessment years 1984-85 and 1985-86 had been withdrawn. The respondent in written statement submitted that provisionsof Section 273A of the Act and the explanation appended thereto hasbeen correctly interpreted by it which provides that the assessee will beentitled to get relief under the aforesaid provisions only once, and since inthe present case the dates of filing of the return were different, it could notbe said that it was one disclosure. We have heard learned counsel for the parties and have perused the record. Learned counsel for the petitioner referred to sub-section (3)of Section 273-A of the Act and placed reliance on a decision of theKarnatka High Court in C. Subaramani v. Assistant Commissioner of Income Tax and another, (1993) 202 ITR 347, to submit that the orderrefusing to consider petitioner’s application for assessment year 1987-88was unsustainable in law. Learned counsel for the respondent, on theother hand, supported the order passed by the CIT. We have considered the submissions made by the respective counsels. Section 273A(3) which is relevant for the purpose of this case,reads thus: 273-A (1) Notwithstanding anything contained in this Act, theCommissioner may, in his discretion, whether on his ownmotion or otherwise, - xxx xxx xxx xxx Income Tax and another, (1993) 202 ITR 347, to submit that the orderrefusing to consider petitioner’s application for assessment year 1987-88was unsustainable in law. Learned counsel for the respondent, on theother hand, supported the order passed by the CIT. We have considered the submissions made by the respective counsels. Section 273A(3) which is relevant for the purpose of this case,reads thus: 273-A (1) Notwithstanding anything contained in this Act, theCommissioner may, in his discretion, whether on his ownmotion or otherwise, - xxx xxx xxx xxx (3) Where an order has been made under sub-section (1) infavour of any person, whether such order relates to one ormore assessment years, he shall not be entitled to any reliefunder this section in relation to any other assessment year atany time after the making of such order:” According to sub-section (3) of Section 273A of the Act, anassessee can get relief only once, whether the application relates to oneor more assessment years. The question that arises for determination is,when an application is made for waiver of interest and penalty for differentassessment years, whether an assessee is entitled to claim benefit of waiver under Section 273A of the Act for all the assessment years byhaving his application considered by the CIT by a common order. Similar issue was considered by Karnatka High Court in C.Subaramani’s case (supra) and while interpreting sub-section (3) ofSection 273A and holding the issue in favour of the assessee, it wasobserved: “Sub-section (3) provides that an order to be made undersection 273A may pertain to one or more than oneassessment year. But, once that power is exercised, theassessee will not be entitled to any relief in relation to anotherassessment order after making such an order. In the decisionin Ram Sarandas Har Swaroop Mal v. CIT [1990] 186 ITR 503(All), it is held that a common application filed for threedifferent years was disposed of by a common order and in thatorder, the Commissioner confined the relief to only one yearand, in respect of other two years, he refused to grant therelief. The Allahabad High Court, explaining the scope ofsection 273A(3), stated that when the conditions are fulfilled, itis certainly open to the Commissioner to waive or reduce theinterest as the case may be. But, once that power isexercised, thereafter it should not be open to him to exercisethat power again after making such an order. In the presentcase, although applications had been filed on different datesor separately, still the relief sought for by the petitioner wasconsidered together by a common order and the bar undersub-section (3) is only attracted only after the order is madeand not prior to that. When that is so, it was not open to the Commissioner to have refused to consider the application filedby the petitioner for the assessment year 1986-87.” In view of the above, the CIT was not justified in declining theprayer of the assessee to entertain his application for waiver of interestand penalty for the assessment year 1987-88 and the impugned order tothat extent cannot be legally sustained. Accordingly, the writ petition is allowed and the matter isremitted to the CIT to consider and dispose of the application of thepetitioner for waiver of the interest and the penalty relating to theassessment year 1987-88 afresh in accordance with law. (AJAY KUMAR MITTAL) JUDGE February 21, 2011*rkmalik* (ADARSH KUMAR GOEL) JUDGE