DIAMOND GLASS AGENCIES Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) BY consent of the parties these writ petitions are taken up for final disposal.

(2.) THE petitioner challenges annexure G, the order passed by the first respondent. The facts are : The petitioner filed the returns for the asst. yrs. 1980 81 to 1983 84 under the IT Act, 1961. After the assessment orders were passed, the petitioner sought to invoke the provisions under S. 273A of the IT Act, 1961 (hereinafter called "the Act"), under which the CIT is authorised to waive or reduce the interest. The CIT, Karnataka II, passed an order under S. 273A of the Act on 5th Oct., 1993, rejecting the request of the petitioner to waive interest, except for 1979 80, for the asst. yrs. 1980 81 to 1984 85 on the ground that though the returns of income have been filed voluntarily and the income disclosed in full, taxes on the returned income have not been fully paid, which is one of the conditions to be satisfied for waiver of interest under ss. 139(8) and 217 of the Act (Annexure G). It, seems the petitioner moved an application under S. 154 of the Act for rectification. The petitioner filed his application under S. 154 of the Act on 3rd Jan., 1996, with a request to the CIT for early disposal of the petition and also for giving an opportunity of being heard in support of his case. The application under S. 154 of the Act was entertained and was dismissed by the CIT as per annexure G on 22nd June, 1996. This order is under challenge before this Court, i.e., the order passed by the CIT under S. 154 of the Act.

(3.) A statement of objection has been filed by the Department. It is stated that the CIT has passed an order under S. 273A of the Act on 5th Oct., 1993, declining to grant any relief of waiver or reduction of the interest amount on the ground that one of the conditions of waiver of interest levied under S. 139(8) and S. 217 of the Act have not been satisfied. It is also pointed out that the order passed under S. 273A was not questioned by the petitioner before any forum. It is stated that inasmuch as the order dt. 5th Oct., 1993, passed under S. 273A of the Act has not been assailed and had become final the writ petitions are liable to be dismissed. It is also pointed out that the order passed by the first respondent under S. 154 of the Act which is challenged herein does not suffer from any infirmity. It is also pointed out that the question as to whether there is any payment of tax satisfying the condition as envisaged and within the meaning of S. 273A of the Act is an arguable question and, therefore, it cannot be said that there is any mistake apparent from the record. It is pointed out that as stated in the order passed by the first respondent under S. 154 of the Act, there is non fulfilment of the condition as envisaged under S. 273A of the Act. It is also pointed out that the contention urged by the petitioner that payment of assessed tax before filing of the petitioner under S. 273A of the Act should be taken as sufficient compliance with the requirement of payment of tax on the disclosed income is not tenable. It is pointed out that s. 273A envisages a condition precedent for grant of any relief of waiver or reduction of interest that the applicant ought to have "paid tax on the income so disclosed". Inasmuch as the petitioner has not paid tax on the income so disclosed, it is stated that rightly the application under S. 273A has been rejected. So also the rectification petition filed by the petitioner under S. 154 of the Act. It is pointed out that, admittedly, the petitioner has not paid the tax on the returned income, as such there is non fulfilment of the condition as envisaged under S. 273A of the Act. It is also pointed out that the first respondent has passed a speaking order under S. 154 of the Act and non affording of personal hearing is not fatal to the validity of the said order. It is pointed out that no principles of natural justice have been violated.