Analab (India) Pvt. Ltd. vs Commissioner of Income Tax and Others

Amitava Lala, J.—It appears to this court that the order under challenge was passed by the Commissioner of Income Tax, West Bengal (II), Calcutta, u/s 273A of the Income Tax Act, 1961, by holding a view that review of the order passed by the authority is impermissible under the law.

According to me there is a fallacy in passing such order by the Commissioner of Income Tax. The case of the petitioner is that waiver of interest and penalty could have been granted by such authority but it failed to grant so. Earlier no tax has been paid and for the same it was not granted but since subsequently tax has already been paid there cannot be any embargo in considering the matter on the merits as regards waiver of interest and penalty u/s 273A of the Income Tax Act, 1961. The definition of the section speaks about the power of the authority to reduce or waive penalty, etc., in certain cases. Therefore, there is no question of holding a view that such type of applications are always considered to be review as it has been done wrongly or erroneously. It is a matter of reconsideration under the inherent power of the authority concerned. By such power if the bona fides of the assessee are properly tested obviously the authority can reconsider and pass such order. This is as good as Section 151 of the Code of Civil Procedure. The Commissioner is empower to consider the prayer on the merits as to whether for the ends of justice the assessee can be granted relief as regards waiver of interest and penalty or he cannot be allowed, to prevent abuse of process of law. The flavour of Section 273A speaks for the same. The provision of such section cannot be said to be reviewed simplicitor nor it speaks so. It is a comprehensive section to provide justice to an assessee upon considering all aspects of the matter. The intention of the Legislature is to give maximum number of rooms to an assessee under the fiscal statute so that no question of unjust enrichment can arise. If, today, this court ignores such conduct, then it will be an act of ignoring the values of the fiscal statute which is not expected.

Therefore, I am of the view that the order passed by the Commissioner of Income Tax dated December 31, 1997, being annexure E to the writ petition should be set aside and accordingly stands set aside. The authority is empowered to consider the matter on the merits within a period of one month from the date of communication of this order.

Thus this writ petition stands disposed of.

No order is passed as to costs.

Let a xeroxed certified copy of this judgment be supplied to the parties by the Department within seven days from the date of putting in requisition for drawing up and completion of the order as well as the certified copy thereof.