N.D. Ojha, C.J. - (1.)THE petitioner, who is an assessee under the Income-tax Act, 1961 (hereinafter referred to as "the Act"), made an application in respect of the years 1968-69 and 1969-70 for waiver of penalty leviable under Section 271(1)(a), interest charged under Sections 139(8) and 217 and penalty leviable under Section 273(b).
(2.)THE Commissioner of Income-tax, by his order dated February 23, 1981, a copy whereof has been filed as annexure-B to the writ petition, waived the penalty leviable under Section 271(1)(a) of the Act. He, however, dismissed the application in so far as the prayer for waiver of interest charged under Sections 139(8) and 217 and penalty leviable under Section 273(b) was concerned on the ground that the petitioner had not complied with the condition precedent contained in Clause (c) of Sub-section (1) of Section 273A of the Act. Aggrieved by that order, the petitioner made an application for rectification under Section 154 of the Act which was dismissed by the Commissioner of Income-tax by his order dated September 10, 1981, on the ground that Section 273A was outside the purview of Section 154 of the Act. It is these orders which are sought to be quashed in the present petition.
The basic question which falls for consideration is as to whether the Commissioner of Income-tax committed an error of law or an error of jurisdiction in taking the view that the penalty under Section 273(b) and interest charged under Sections 139(8) and 217 of the Act could not be waived inasmuch as the petitioner had not complied with the requirement of Section 273A(1)(c) of the Act.

Having heard counsel for the parties, we are of the opinion that the impugned order passed by the Commissioner of Income-tax does not suffer from any such error which could justify interference under article 226/227 of the Constitution.

(3.)THE provision which is relevant for purposes of the present writ petition is Section 273A(1)(iii)(c) of the Act. It reads as hereunder :
"273A. Power to reduce or waive penalty, etc., in certain cases.--(1) Notwithstanding anything contained in this Act, the Commissioner may, in his discretion, whether on his own motion or otherwise,--...

(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...

(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..."

The case of the petitioner is that no notice was issued to him under Sub-section (2) of Section 139 of the Act. However, it is not disputed as has been stated in para 3 of the return that a notice under Section 148 of the Act was issued to the petitioner on July 2, 1975, and was served on the petitioner on July 9, 1975. In this view of the matter, on a plain reading of Sub-clause (c) referred to above, the petitioner would be entitled to the waiver of interest payable under subsection (8) of Section 139 and Section 217 and penalty imposed or imposable under Section 273(b) of the Act only if he had prior to the issue of notice to him under Section 148 of the Act voluntarily and in good faith made a full and true disclosure of his income and paid the tax on the income so disclosed.