Arun Madan, J. - (1.) HEARD learned counsel for the parties.
(2.) THE petitioner-firm by way of this writ petition, has challenged the assessment orders dated January 31, 1989 and August 22, 1989 passed by the Income-tax Officer, Jaipur (the "ITO") and the Commissioner of Income-tax, Jaipur, (the "CIT"), respectively, for the years 1975-76 to 1979-80 on the grounds, inter alia, that the firm's business had been adversely affected due to the money block on the petitioner's account in the U. S. A. to the tune of US $124,122.51 with one A.Q. Ansari to whom the goods were exported in the U. S. A. THE petitioner, in para. 3 of the writ petition, indicated the income of the petitioner's firm for the assessment years 1975-76 to 1979-80 in the following manner : JUDGEMENT_558_ITR257_2002Html1.htm It is contended by learned counsel for the petitioner that the petitioner being an uneducated person, is a partner of the firm; the firm earned a profit of Rs. 1,29,097 for the assessment year 1978-79, when the petitioner's share for tax purposes was determined at Rs. 60,530, he handed over the relevant papers to the tax consultant for doing the needful. The return of income was, accordingly, prepared by the tax consultant after depositing a sum of Rs. 20,666 as advance tax vide demand draft dated October 21, 1985. He has further contended that the above return of income was filed voluntarily without having been given any notice for the same. The Income-tax Officer, vide his order dated January 31, 1989 under Section 273(b) of the Income-tax Act, 1961 (for short "the Act") assessed the tax at Rs. 20,666 as referred to above and imposed a penalty together with interest for the assessment year 1978-79 in the following manner : JUDGEMENT_558_ITR257_2002Html2.htm Against the aforesaid order of the Income-tax Officer, the petitioner preferred an appeal before the Commissioner of Income-tax, Jaipur, contending, inter alia, that the return for the year 1978-79 was filed voluntarily as on November 7, 1985 under the Amnesty Scheme of 1985 and that the return was accepted by the Income-tax Officer under Section 143(3) of the Act and that the assessee had fully co-operated with the assessing authorities with regard to the various enquiries made. As regards the assessee's request for waiver of the penalty and interest imposed upon it by the Income-tax Officer, the Commissioner of Income-tax, Jaipur vide his order dated August 22, 1989 rejected the ' petitioner's contention and communicated the same on December 23, 1989 for the reason that since the assessee had failed to satisfy the conditions laid down in Section 273A of the Act it was not open to the petitioner to challenge the impugned order of the Income-tax Officer. It is to be noted that besides confirming the demand of Rs. 97,914 on the income of Rs. 60,533 against the petitioner for the assessment year in question, prosecution was also launched against the petitioner by way of a complaint under Section 276CC of the Act, the petitioner having failed to furnish the return of income within the stipulated time, which was required to furnish under Section 139 of the Act. Section 276CC of the Act provides as under : "276CC. If a person wilfully fails to furnish in due time the return of income which he is required to furnish under Sub-section (1) of Section 139 or by notice given under Clause (i) of Sub-section (1) of Section 142 or Section 148, he shall be punishable, -- (i) in a case where the amount of tax, which would have been evaded if the failure had not been discovered, exceeds one hundred thousand rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine ; (ii) in any other case, with imprisonment for a term which shall not be less than three months but which may extend to three years and with fine : Provided that a person shall not be proceeded against under this section for failure to furnish in due time the return of income under Sub-section (1) of Section 139 -- (i) for any assessment year commencing prior to the 1st day of April, 1975 ; or (ii) for any assessment year commencing on or after the 1st day of April, 1975, if- (a) the return is furnished by him before the expiry of the assessment year ; or (b) the tax payable by him on the total income determined on regular assessment, as reduced by the advance tax, if any, paid, and any tax deducted at source, does not exceed three thousand rupees." A Complaint was also preferred against the petitioner in the court of Chief Judicial Magistrate (Economic Offences), Jaipur, of which a criminal case was registered vide Case No. 373 of 1986 of which the proceedings are still pending before the said court.
(3.) DURING the course of hearing, Shri J.K. Singhi, the learned counsel representing the Revenue, has vociferously contended that instead of participating in the proceedings by setting up a defence, if any, available to the petitioner before the competent court, i.e., CJM (EO), Jaipur, the petitioner has come up by way of this writ petition challenging the assessment orders and also imposition of penalties as referred to hereinabove. Learned counsel for the respondents, however, contended that the proper course available to the petitioner was that he has first to exhaust the remedy available to him under the Act instead of directly rushing to this court by way of filing the instant writ petition under Article 226 of the Constitution. Learned counsel for the petitioner has contended that the Commissioner of Income-tax, Jaipur, whose order dated August 22, 1989 is under challenge in this petition, had totally discarded the provisions of Section 273A of the Act which itself laid down that it is open to the Commissioner of Income-tax to waive or reduce the amount of penalty or waive the interest paid or payable under the various provisions of the Act, if : (i) the return of income has been filed voluntarily by the assessee before the receipt of notice under Section 139(2) of the Act or under Section 148 thereof ; (ii) the tax has been paid under Section 140A of the Act before filing of the return ; (iii) the assessee has cooperated fully in the assessment proceedings ; and (iv) the voluntary return has been filed in good faith declaring full particulars of share income as computed by the Income-tax Officer. It is only under the above circumstances that the impugned order of the Commissioner of Income-tax, which is under challenge in this writ petition, could be challenged in the event of failure to conform to any of the conditions as referred to above but not otherwise. ;