Mohinder Singh V. Commissioner of Income Tax, Patiala

CWP/9811/1993

AI Insights

The case involves Mohinder Singh, a partner in M/s. United Construction Company, who sought a writ of mandamus against the Commissioner of Income Tax, Patiala, for not considering his application for waiver of interest and penalty under Section 273A of the Income Tax Act, 1961, for the assessment year 1987-88. The petitioner had filed income returns for several years, including 1987-88, and paid the assessed tax and interest. However, penalties for late filing and non-payment of advance tax were imposed, leading to the petition. The CIT had previously considered similar applications from the petitioner's partners but excluded the petitioner's 1987-88 assessment year, citing that the relief under Section 273A could only be granted once, regardless of the number of assessment years involved. The court, referencing a decision from the Karnataka High Court, disagreed with this interpretation and allowed the writ petition.

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 818017 (HC-CHANDIGARH)
• Appeal Type: Others
• Pronouncement Date: 21-02-2011
• Assessment Year: misc
• Other Referred Cases: C. Subaramani v. Assistant Commissioner of Income Tax and another, Ram Sarandas Har Swaroop Mal v. CIT
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: TEJINDER JOSHI
• Assessee Lawyers: RAJESH GARG
• Keywords: Assessment Year; Late filing of Returns; Non-payment of advance tax; Waiver of interest; Penalty leviable
• Section: 148; 139; 215; 273; 273A; 271(1)(a); 139(8); 217

Judgement Text

" Civil Writ Petition No. 9811 of 1993 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. --- Civil Writ Petition No. 9811 of 1993 Date of decision: 21.2.2011 Mohinder Singh --- Petitioner Versus Commissioner of Income Tax, Patiala --- Respondent CORAM: HON’BLE MR. JUSTICE ADARSH KUMAR GOEL HON’BLE MR. JUSTICE AJAY KUMAR MITTAL --- Present: Mr. Rajesh Garg, Advocate for 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 the respondent to consider his application dated 28.12.1987, moved under Section 273A of the Income Tax Act, 1961 (for short “the Act”), for waiver of the interest charged and the penalty leviable, relating to the assessment year 1987-88. The petitioner, who is a partner in the firm M/s. United Construction Company (Railways Division), filed returns of income for the assessment years 1984-85 to 1987-88 on different dates prior to issuing of notice under Section 139 or 148 of the Act making full and true disclosure of his income. As per averments of the petitioner, he made Civil Writ Petition No. 9811 of 1993 -2- payment of the tax assessed and the interest charged thereon in consequence 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 Sections 215/217 and 139(8) of the Act. The petitioner moved application under Section 273A of the Act for waiver of the interest charged and the penalty leviable under Sections 271(1)(a) and 273 of the Act. According to the petitioner, the other three partners of the firm made applications containing similar prayer which were considered by the respondent, but vide order dated 31.3.1993, the respondent did not consider the claim of the petitioner for the assessment year 1987-88, notwithstanding the fact that he had furnished reply dated 28.1.1993 to the respondent asserting that the provisions of Section 273-A of the Act no where provided that application for seeking relief under Section 273A of the Act could be considered only for one assessment year if the returns were filed on different dates. The petitioner also made a prayer that his claim for the relief relating to the assessment years 1986-87 and 1987-88 may be considered 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 provisions of Section 273A of the Act and the explanation appended thereto has been correctly interpreted by it which provides that the assessee will be entitled to get relief under the aforesaid provisions only once, and since in the present case the dates of filing of the return were different, it could not be said that it was one disclosure. Civil Writ Petition No. 9811 of 1993 -3- 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 the Karnatka High Court in C. Subaramani v. Assistant Commissioner of Income Tax and another, (1993) 202 ITR 347, to submit that the order refusing to consider petitioner’s application for assessment year 1987-88 was unsustainable in law. Learned counsel for the respondent, on the other 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, the Commissioner may, in his discretion, whether on his own motion or otherwise, - xxx xxx xxx xxx (3) Where an order has been made under sub-section (1) in favour of any person, whether such order relates to one or more assessment years, he shall not be entitled to any relief under this section in relation to any other assessment year at any time after the making of such order:” According to sub-section (3) of Section 273A of the Act, an assessee can get relief only once, whether the application relates to one or more assessment years. The question that arises for determination is, when an application is made for waiver of interest and penalty for different assessment years, whether an assessee is entitled to claim benefit of Civil Writ Petition No. 9811 of 1993 -4- waiver under Section 273A of the Act for all the assessment years by having 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) of Section 273A and holding the issue in favour of the assessee, it was observed: “Sub-section (3) provides that an order to be made under section 273A may pertain to one or more than one assessment year. But, once that power is exercised, the assessee will not be entitled to any relief in relation to another assessment order after making such an order. In the decision in Ram Sarandas Har Swaroop Mal v. CIT [1990] 186 ITR 503 (All), it is held that a common application filed for three different years was disposed of by a common order and in that order, the Commissioner confined the relief to only one year and, in respect of other two years, he refused to grant the relief. The Allahabad High Court, explaining the scope of section 273A(3), stated that when the conditions are fulfilled, it is certainly open to the Commissioner to waive or reduce the interest as the case may be. But, once that power is exercised, thereafter it should not be open to him to exercise that power again after making such an order. In the present case, although applications had been filed on different dates or separately, still the relief sought for by the petitioner was considered together by a common order and the bar under sub-section (3) is only attracted only after the order is made and not prior to that. When that is so, it was not open to the Civil Writ Petition No. 9811 of 1993 -5- Commissioner to have refused to consider the application filed by the petitioner for the assessment year 1986-87.” In view of the above, the CIT was not justified in declining the prayer of the assessee to entertain his application for waiver of interest and penalty for the assessment year 1987-88 and the impugned order to that extent cannot be legally sustained. Accordingly, the writ petition is allowed and the matter is remitted to the CIT to consider and dispose of the application of the petitioner for waiver of the interest and the penalty relating to the assessment year 1987-88 afresh in accordance with law. (AJAY KUMAR MITTAL) JUDGE (ADARSH KUMAR GOEL) February 21, 2011 JUDGE *rkmalik* "