Shri Mohinder Pal Chanan v. The Commissioner Of Income Tax, Jalandhar And Another

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH. CWP No.5136/1988Date of Decision: 17.9.2009. Shri Mohinder Pal Chanan ..........Petitioner. Versus The Commissioner of Income Tax, Jalandhar and another. ..........Respondents CORAM: HON'BLE MR.JUSTICE M.M.KUMARHON'BLE MR.JUSTICE JASWANT SINGH. Present:None for the parties. 1. To be referred to the Reporter or not ? 2. Whether the judgment should be reported in the Digest ? JASWANT SINGH,J. Prayer in the present writ petition under Articles 226/227of the Constitution is for quashing of the order dated 28.3.1988 (P/1)passed by respondent no.1-Commissioner of Income Tax, Jalandharand further for directing the respondents to dispose of the application(P/6) under Section 273A of the Income Tax Act,1961 (for short theAct) as per law. The facts giving rise to the filing of the present writ petition CWP No.5136/1988 2 as alleged by the petitioner are that he is a petty trader and filed hisincome tax returns for the years 1978-79 and 1979-80 by showing anincome of Rs.16,853/- and Rs.32,350/- respectively. The return for theyear 1978-79 was examined by the respondent no.2-Income TaxOfficer, Ward-A, Phagwara on 28.2.1981 and found no discrepancy inthe accounts maintained by the petitioner yet the assessment wascompleted at an amount of Rs.18,000/- on the ground that the assesseehad agreed to be assessed on net income of Rs.18,000/- includingpremium of Rs.952/- and the assessment order dated 28.2.1981 isannexed as Annexure P/8. It is further alleged that the assessment forthe year 1979-80 was completed by respondent no.2 on 31.3.1982 onthe return submitted by the petitioner and no addition was made byrespondent no.2-Income Tax Officer. A copy of the assessment orderdated 31.3.1982 is attached as Annexure P-9. It is also alleged that thepetitioner had made full payment of the income tax and nothing is dueagainst him but still the respondent no.2 imposed a penalty of Rs.110/-for late filing of return and also imposed a penalty of Rs.200/- foralleged failure to file the estimate of advance tax, for the assessmentyear 1978-79. Similarly for the assessment year 1979-80 an amount ofRs.2753/- under Section 271(1)(a) and an amount of Rs.300/- underSection 273(2)(a) was imposed as penalty as well as an interestamounting to Rs.390/- was imposed under Section 220(2). It is furtheralleged that after receiving the notice from respondent no.2, for depositof penalty and interest, he filed a petition under Section 273A on CWP No.5136/1988 3 10.12.1987 (P/6) before respondent no.1 and subsequently filed arevised petition on 8.1.1988 (P/7) for waiver of the penalty and interest.That respondent no.1 vide his order dated 28.3.1988 (P/1)rejected the petition under Section 273A of the petitioner without anybasis. Hence the present writ petition. Neither any reply has been filed on behalf of therespondents nor any one appeared on behalf of the parties. CWP No.5136/1988 3 10.12.1987 (P/6) before respondent no.1 and subsequently filed arevised petition on 8.1.1988 (P/7) for waiver of the penalty and interest.That respondent no.1 vide his order dated 28.3.1988 (P/1)rejected the petition under Section 273A of the petitioner without anybasis. Hence the present writ petition. Neither any reply has been filed on behalf of therespondents nor any one appeared on behalf of the parties. We have perused the paper book and find that the writpetition has merit and deserves to be allowed. A perusal of theimpugned order dated 28.3.1988 (P/1) reveals that the application ofthe petitioner was rejected on the ground that “although there is notime limit for filing of application under Section 273A of the Act, yetthe assessee must observe some time limit for seeking the relief. Thepetition for the assessment year 1978-79 and 1979-80 having been filedvery late, are therefore not entertained and the same are rejected”. Thereasoning adopted by the respondent no.1 is wholly baseless andunsustainable in the eyes of law. When respondent no.1 himself hasconceded that there is no time limit for filing an application underSection 273A of the Act then there is no justification for rejecting thesame only on the ground that the assessee must observe some time limitfor seeking relief and the assessee cannot be penalised for the same ifthere is no law of limitation prescribed under the Act for preferring anapplication under Section 273A, then the assessee was within his rightwhile filing the application dated 10.12.1987(P/6) and revised CWP No.5136/1988 4 application dated 8.1.1988 ( P/7). It is not permissible in law forauthorities to add or subtract to the unambiguous and clear provisionsof statutes. Consequently the writ petition is allowed, impugned orderdated 28.3.1988 (P/1) is quashed and respondent no.1 is directed todecide the application dated 10.12.1987(P/6) and revised applicationdated 8.1.1988 (P/7) in accordance with law by passing a speakingorder within a period of three months from the date of receipt of acopy of this order. No order as to costs. (M.M.Kumar) (Jaswant Singh) Judge Judge 17.9.2009.joshi