K.C. Agrawal, J. - (1.) THIS is a petition under Article 226 of the Constitution for a writ of certiorari quashing the order of the Commissioner of Income-tax dated 18th May, 1977, rejecting the application filed by the petitioner under Section 273A(i)(ii)(b) of the Income-tax Act, 1961 (hereinafter referred to as "the Act").
(2.) THE petitioner is a Hindu undivided family carrying on business in sarafa and money-lending. It was assessed to income-tax for the assessment year 1964-65. It, however, did not file returns in respect of the assessment years 1965-66 to 1968-69. For the assessment years 1969-70 and 1970-71 returns were filed on 25th March, 1970, and 6th March, 1971, respectively. It appears that while dealing with the case of the year 1969-70, the Income-tax Officer concerned considered it necessary to verify the correctness and completeness of the returns filed by the petitioner. Hence, a notice was issued on February 8, 1971, under Section 143(2) of the Act requiring the presence of the petitioner. THE petitioner's representative appeared on September 22, 1971, before the Income-tax Officer. On the aforesaid date the Income-tax Officer required the petitioner to file further details in respect of matters which are mentioned below : (1) Details of capital account from 1963-64 to date with details of all investments year-wise, and particulars of personal expenses, including marriages, deaths and illness in the family in those years; (2) Detailed family tree with age, educational qualifications, etc., of each living or deceased coparcener during these years ; (3) Detailed copies of profit and loss account, balance-sheet and personal account for all the years ; (4) Valuation certificates of the bagh including plantation and irrigation facilities installed and house and shops from an approved valuer; (5) Details of all bank or post office accounts or deposits and shares, etc., held in the name of any of the coparceners. (6) Details of all furniture, fittings and assets of domestic nature, viz., sofa, wardrobes jewellery, etc., acquired during these years with cost and date of acquisition. (7) Copies of all bank accounts from date of inception to date and details of lockers held, if any. After the aforesaid date, the petitioner took several adjournments. On 24th March, 1972, he filed revised returns for the assessment years 1969-70 and 1970-71 as well as returns for the years 1963-64 to 1971-72. As the petitioner had concealed the income with reference to the years 1963-64 to 1970-71, he filed an application for the waiver of penalty before the Income-tax Officer. It, however, appears that on being subsequently advised that the application for waiver of penalty had to be moved to the Commissioner of Income-tax, the petitioner filed another application for the waiver. This application was addressed to the Commissioner of Income-tax through the Income-tax Officer, Fatehgarh. Along with the application for waiver the petitioner had also filed an application for disclosure requesting that the income disclosed by him be permitted to be spread over the years 1963-64 to 1971-72. This application was subsequently revised by the petitioner and the disclosure application for spreading over the entire income was restricted to the years 1965-66 to 1971-72. The final position with reference to the various years along with the particulars of the revised returns as well as the initial returns would appear from the chart given below: JUDGEMENT_1_ITR115_1978Html1.htm The petitioner again filed a fresh application for the waiver of the penalty under Section 271(4A) of the Act. However, before this application for waiver was moved the Income-tax Officer had already issued notices under Section 148 for the assessment years 1965-66 to 1968-69 and 1970-71. So far as the assessment years 1969-70 and 1971-72 are concerned, the Income-tax Officer issued notices under Section 148 of the Income-tax Act on 24th March, 1975, and 20th March, 1975, respectively.
(3.) THE assessments for all these aforesaid years, viz., 1965-66 to 1971-72, were completed on 17th March, 1975. While making the assessment orders, the Income-tax Officer also issued notices to the petitioner in respect of the years mentioned above under Sections 271(1)(c), 271(1A) and 273. THEreafter, a letter was received by the petitioner from the office of the Commissioner of Income-tax stating that as there had been an amendment to the Income-tax Act with effect from 1st October, 1975, and Section 271(1A) had been replaced by Section 273A, the petitioner's application filed earlier for the waiver of penalty had become infructuous and that the petitioner could file another application under the newly added section, if so advised. Consequently, the petitioner filed a fresh application for waiver on 11th May, 1976. THE said application was considered by the Commissioner of Income-tax and was thereafter rejected by an order dated 18th May, 1977. THE order passed by the Commissioner rejecting the application reads as under : "I have gone through the records. Apart from the survey report referred to above, for the assessment year 1969-70 notice under Section 139(2) was issued and served on the assessee on 30th December, 1969. THEreafter, the facts were considered in detail as per entries in the order-sheet. Detailed inquiry on different points were initiated and the assessee was required to furnish information on seven points (Entry dated 22-9-71). THE application for spread over was made only in February, 1972. THErefore, the requisite conditions, viz., the returns should have been filed voluntarily, are not satisfied. Hence there cannot be any waiver of penalties under Sections 271(1)(a) or 273(b). Since the case was detected by the department prior to disclosure, Section 27I(1)(c) would also apply. A note on the above lines may be endorsed and the Income-tax Officer may be directed to impose the penalties for the various years. I also find that the then Commissioner of Income-tax had while accepting spread over had not given any assurance about waiver and had given a direction that it should be considered on merits. Sd. A. R. Natarajan 18-5-77."andnbsp;andnbsp; andnbsp;andnbsp; andnbsp;andnbsp; Aggrieved by the aforesaid ordor rejecting the application for waiver, the present writ petition was filed in this court.;