S.D. Aggarwala, C.J. - (1.) THIS and the connected four appeals, i.e., Appeals Nos. 1018, 1015, 1016 and 1022 all of 1992 arise out of the judgment of the learned single judge dated April 24, 1992, in Writ Petitions Nos. 10468, 12796, 12797, 12802 and 13399 of 1990 (see [1992] 198 ITR 54).
(2.) THE facts involved in all these writ petitions being similar, the learned single judge decided the same by a common judgment. THE learned single judge also treated Writ Petition No. 10468 of 1990 as the leading case. Writ Petition No. 10468 was filed by R. P. Handa. He is the proprietor of Messrs. Sona Steel Industries, an export house recognised by the Government of India, Ministry of Commerce, New Delhi. It is situate in Ludhiana in the State of Punjab. On January 23, 1985, in connection with income-tax purposes, a search and seizure operation was conducted at the residence and factory premises of the petitioner. The search and seizure operation continued for three days up to January 25, 1985. A large number of books of account and documents were seized by the income-tax authorities. Section 271 of the Income-tax Act, 1961 (for short, "the Act"), provides for levy of penalty for concealment of income, etc. Sub-clause (c) of Sub-section (1) of Section 271 of the Act provides that, if the Assessing Officer or the Deputy Commissioner (Appeals) or the Commissioner (Appeals), in the course of any proceedings under this Act is satisfied that any person 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 in addition to any tax payable by him, a sum which shall not exceed two times the amount of tax sought to be evaded by reason of the concealment of particulars of his income or the furnishing of inaccurate particulars of such income. In this section, instead of "Assessing Officer", the words "Income-tax Officer" and in place of the words "Deputy Commissioner (Appeals)", the words "Appellate Assistant Commissioner" were in existence at the time when the search and seizure operation took place in regard to the petitioner. Section 273A of the Act gives power to the income-tax authorities to reduce or waive penalty, etc., in certain cases. Explanation 2 to Sub-section (1) of Section 273A of the Act was inserted by the Taxation Laws (Amendment) Act with effect from October 1, 1984. This Explanation was omitted by the Finance Act, 1985, with effect from May 24, 1985. At the time when the search and seizure of the petitioner's residence and factory premises took place, this Explanation 2 was in existence. It remained in existence only for a period of about eight months. It is this Explanation 2 which is the subject-matter of interpretation in the present appeal. It is quoted below : "Explanation 2.--Where any books of account, other documents, money, bullion, jewellery or other valuable article or thing belonging to a person are seized under Section 132 and within 15 days of such seizure, the person makes a full and true disclosure of his income to the Commissioner, such person shall, for the purposes of Clause (b) of this sub-section, be deemed to have made, prior to the detection by the Income-tax 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 a disclosure of such particulars."
(3.) SECTION 273A of the Act, as already stated above, gives power to the income-tax authorities to reduce or waive penalty, etc., in certain cases. At the relevant time, namely, in the year 1984-85, it read as follows : "273A. (1) Notwithstanding anything contained in this Act, the 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 of 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 Income-tax 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), co-operated 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.--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. (2) Notwithstanding anything contained in Sub-section (1),-- (a) if in a case the penalty imposed or imposable under clause (i) of sub-section (1) of SECTION 271 or the minimum penalty imposable under SECTION 273 for the relevant assessment year, or, where such disclosure relates to more than one assessment year, the aggregate of the penalty imposed or imposable under the said clause or if the minimum penalty imposable under the said section for those years, exceeds a sum of one hundred thousand rupees, or (b) if in a case falling under Clause (c) of Sub-section (1) of SECTION 271, the amount of income in respect of which the penalty is imposed or imposable for the relevant assessment year, or, where such disclosure relates to more than one assessment year, the aggregate amount of such income for those years, exceeds a sum of five hundred thousand rupees, no order reducing or waiving the penalty under Sub-section (1) shall be made by the Commissioner except with the previous approval of the Board. (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. (4) Without prejudice to the powers conferred on him by any other provision of this Act, the Commissioner may, on an application made in this behalf by an assessee, and after recording his reasons for so doing, reduce or waive the amount of any penalty payable by the assessee under this Act or stay or compound any proceeding for the recovery of any such amount, if he is satisfied that - (i) to do otherwise would cause genuine hardship to the assessee, having regard to the circumstances of the case ; and (ii) the assessee has co-operated in any enquiry relating to the assessment or any proceeding for the recovery of any amount due from him : Provided that where the amount of any penalty payable under this Act or, where such application relates to more than one penalty, the aggregate amount of such penalties exceeds one hundred thousand rupees, no order reducing or waiving the amount or compounding any proceeding for its recovery under this sub-section shall be made by the Commissioner except with the previous approval of the Board. (5) Every order made under this section shall be final and shall not be called into question by any court or any other authority." The abovesaid section provides that the Commissioner may, in his discretion, whether on his own motion or otherwise reduce or waive the amount of penalty imposed or imposable on a person under Clause (iii) of Sub-section (1) of Section 271 of the Act, if he is satisfied that such person has, prior to the detection by the Income-tax Officer, of the concealment of particulars of income or of the inaccuracy of the particulars furnished in respect of such income, voluntarily and in good faith made full and true disclosure of such particulars. This would be clear on a reading of Section 273A(1)(i), (ii), (iii)(b) of the Act. Clause (b) of Sub-section (2) of the above section provides that, if the amount of income in respect of which the penalty is imposed or imposable for the relevant assessment year, or, where such disclosure relates to more than one assessment year, the aggregate amount of such income for those years exceeds a sum of five hundred thousand rupees, no order reducing or waiving the penalty under Sub-section (1) shall be made by the Commissioner except with the previous approval of the Board. It is, therefore, clear that, if the Commissioner wanted to reduce or waive penalty which aggregated to more than five lakhs of rupees, then, in such a case, no order reducing or waiving the penalty could be made by the Commissioner except with the previous approval of the Board. Out of the five writ petitions against the judgments of which the present appeals have been filed, the penalty amount was above five lakh rupees only in Writ Petition. No. 10468 of 1990. In the other writ petitions, the penalty amount was not more than five lakh rupees and as such no approval of the Board was required by the Commissioner and the Commissioner had the power to reduce or waive the penalty. As already stated above, the search and seizure at the residence and factory premises of R. P. Handa took place from January 23, 1985, to January 25, 1985. In view of Explanation 2 to Section 273A of the Act which has been quoted above, R.P. Handa, on February 2, 1985, within 15 days of the search operation, filed a petition before the Commissioner making a full and true disclosure of the movable and immovable assets held by him. This petition has been attached as annexure P-1 to the letters patent appeal. ;