Ply King vs Central Board of Direct Taxes

Heard learned counsel for the parties.

The present application has been filed for quashing the order dated 12-3-1991, as contained in Annexure 10, passed by the Commissioner, Patna, rejecting the application filed by the petitioner for waiver of penalty and interest u/s 273A of the Income Tax Act (hereinafter referred to as''the Act'').

The facts, which are not in dispute, are that the petitioner is a partnership firm and on 15-2-1985, the premises of the firm and the residential house of one of its partners were searched u/s 132 of the Act. Admittedly, at that time, the jurisdiction to hear the application u/s 273A of the Act was with the Commissioner, Calcutta. However, on 1-3-1985 the petitioner filed a petition under the aforesaid section before the Commissioner, Patna, stating that a number of books of account were seized at the time of search and the petitioner wanted to make full and true disclosure of its all income so that proper assessment could be made thereof right from assessment year 1976-77 till the relevant year of the search. It was further prayed that in view of the fact that the petitioner was ready to make full and true disclosure, the petitioner might be exempted from payment of penalty, interest etc. On 6-6-1985, the Central Board of Directors (hereinafter referred to as ''the Board'') transferred the jurisdiction to hear the matters u/s 273A of the Act from the Commissioner, Calcutta to Patna, and, thereafter, on 13/18-12-1985, the Commissioner, Patna sought for an information from the petitioner on the basis of the aforesaid application filed before him on 1-3-1985. On 29-9-1986, a notice was issued by the Commissioner, Patna, that the Patna Office has no jurisdiction to hear the application filed on 1-3-1985 when the jurisdiction was conferred on it on 6-6-1985.

Thereafter, it appears that on 21-2-1990, the then Commissioner, Patna, made a recommendation to the Board for giving approval to the waiver/ reduction of penalty and interest. Thereafter, it appears that the Board did not approve the same and on 12-3-1991 a final order was passed, which has been impugned in this writ petition, rejecting the claim of the petitioner on three grounds; firstly that the application filed u/s 273A of the Act was not maintainable before the Commissioner, Patna, as at that time he had no jurisdiction to entertain such application; secondly that on merit also no case for interference was made out as there was no full and true disclosure prior to the detection of the concealment, which is one of the basic requirements stipulated u/s 273(1)(b) of the Act, and thirdly that the order of penalty passed by the authority has been upheld by the appellate authority.

Learned counsel for the petitioner raised two points, Firstly, he submitted that once the application u/s 273A of the Act was entertained and, admittedly, the Commissioner, Patna, had jurisdiction at the time when the matter was being disposed of the said application should not have been rejected on the ground of maintainability, specially when u/s 273A(1) of the Act, the Commissioner of Income Tax has also power to entertain the application tinder section 273A of the Act on his own motion. Secondly, he submitted that the predecessor-in-office of the Commissioner of Income Tax, Patna, who has passed the impugned order, had earlier recommended for waiver of penalty and interest and as such he has no jurisdiction to pass the contradictory order in the matter.

So far as the first point is concerned, we agree with the argument advanced by the learned counsel for the petitioner. No doubt, at the time when the application was filed, the Commissioner, Patna, had no jurisdiction, but admittedly, before the notice was issued, the Patna office was vested with the jurisdiction. Section 273A(I) of the Act provides suo motu power of waiver on the Commissioner also and as such even if it is assumed that the application was not maintainable, once the matter was bought to his notice, that application ought to have been entertained in exercise of the suo motu power even though initially he lacked jurisdiction but later on he got jurisdiction and as such on this technical ground, we are of the view that the application should not have been rejected. However, had the application been rejected on this ground alone, we would have remanded the matter, but from the perusal of the impugned order, we find that the Commissioner, Patna, has disposed of the application on merit also. He has come to a definite finding that there was no full and true disclosure as required u/s 273A of the Act, on the other hand, the disclosure was made after the detection in pursuance of the search. He has also found that the order of penalty has attained finality by virtue of it having been affirmed by the appellate authority.

This court does not sit as an appellate forum in disguise over the order passed by the statutory authority under the Act. Unless it is shown that the said finding is either perverse, arbitrary or is based on no material or is contrary to any statutory provision, this court will not interfere with the order only on the ground that on appraisal as an appellate forum different view can be taken. Thus, even though we agree that the first ground given by the Commissioner, Patna, was not a valid one, the order can be upheld on the second ground.

In the result, we do not find any merit in this writ application and it is accordingly, dismissed.