R.A.Sharma, J. - (1.) A Division Bench has referred these two petitions to a Full Bench "to decide as to the meaning of the word 'voluntarily' in Section 273A of the Income-tax Act, 1961, and Section 18B of the Wealth-tax Act, 1957, and in particular to decide whether a disclosure subsequent to search and seizure is necessarily a non-voluntary disclosure".
(2.) The petitioners in both the writ petitions have challenged the orders passed by the Commissioner of Income-tax under Section 273A of the Income-tax Act (hereinafter referred to as "the Act") rejecting their applications for waiver of penalty.
(3.) Learned counsel for both the parties have stated that Sections 271 and 273A, as they were before April 1, 1989, on which date they were amended, will apply to the present cases, because the petitioners in both the cases have made the disclosure and applications for waiver of penalty before the said date. The relevant parts of unamended Sections 271 and 273A are reproduced below : "271. Failure to furnish returns, comply with notices, concealment of income, etc.--(1) If the Assessing Officer or the Deputy Commissioner (Appeals) or Commissioner (Appeals) in the course of any proceedings under this Act, is satisfied that any person (a) has failed to furnish the return of total income which he was required to furnish under Sub-section (1) of Section 139 or by notice given under Sub-section (2) of Section 139 or Section 148 or has failed to furnish it within the time allowed and in the manner required by Subsection (1) of Section 139 or by such notice, as the case may be, or (b) has failed to comply with the notice under Sub-section (1) of Section 142 or Sub-section (2) of Section 143, or fails to comply with a direction issued under Sub-section (2A) of Section 142, or (c) has concealed the particulars of his income or furnished inaccurate particulars of such income, he may direct that such person shall pay by way of penalty,--" 273A. Power to reduce or waive penalty, etc., in certain cases.--(1) Notwithstanding anything contained in this Act, the Chief Commissioner or Commissioner may, in his discretion, whether on his own motion or otherwise,-- (i) reduce or waive the amount of penalty imposed or imposable on a person under Clause (i) of Sub-section (1) of Section 271 for failure, without reasonable cause, to furnish, the return of total income which he was required to furnish under Sub-section (1) of Section 139 ; or (ii) reduce or waive the amount of penalty imposed or imposable on a person under Clause (iii) of Sub-section (1) of Section 271 ; or (iii) reduce or waive the amount of interest paid or payable under Sub-section (8) of Section 139 or Section 215 or Section 217 or the penalty imposed or imposable under Section 273, if he is satisfied that such person (a) in the case referred to in Clause (i), has, prior to the issue of a notice to him under Sub-section (2) of Section 139, voluntarily and in good faith made full and true disclosure of his income ; (b) in the case referred to in Clause (ii), has, prior to the detection by the Assessing Officer, of the concealment of particulars of income or of the inaccuracy of particulars furnished in respect of such income, voluntarily and in good faith, made full and true disclosure of such particulars ; (c) in the cases referred to in Clause (iii), has, prior to the issue of a notice to him under Sub-section (2) of Section 139, or where no such notice has been issued and the period for the issue of such notice has expired, prior to the issue of notice to him under Section 148, voluntarily and in good faith made full and true disclosure of his income and has paid the tax on the income so disclosed, and also has, in all the cases referred to in Clauses (a), (b) and (c), cooperated in any enquiry relating to the assessment of his income and has either paid or made satisfactory arrangements for the payment of any tax or interest payable in consequence of an order passed under this Act in respect of the relevant assessment year. Explanation 1. --For the purposes of this sub-section, a person shall be deemed to have made full and true disclosure of his income or of the particulars relating thereto in any case where the excess of income assessed over the income returned is of such a nature as not to attract the provisions of Clause (c) of Sub-section (1) of Section 271.";