Shardadevi P. Jhunjhunwala and Others vs Commissioner of Income Tax and Another

Ferdino I. Rebello, J.—The petitioner by the present petition seeks to impugn the order dated June 21, 1993, u/s 273A(4) of the Income Tax Act, 1961, and order dated October 31, 1994, u/s 273A(1)(i) of the Income Tax Act.

Search operations were carried out in the premises of the petitioners and of their associates on August 22, 1986. In the search carried out, shares/debentures/units valued at Rs. 82,00,000, cash of Rs. 7,25,000, ornaments and jewelleries valued at Rs. 11,34,280 and silver utensils valued at Rs. 2,70,000 were seized. Various incriminating documents including one diary called "Boston diary" was also seized. Copies of the documents and seized material were supplied to the petitioners. Between September 13, 1986, and December 18, 1986, various steps were taken. On December 18, 1986 order was passed u/s 132(5). On January 14, 1987, an application was moved u/s 132(11), but it appears no action was taken due to further developments. An application u/s 273A was made on January 27, 1987. On January 27, 1987 the petitioners in this petition disclosed an additional income of Rs. 2.29 crores. On March 3, 1987, the group filed revised returns. On March 31, 1987, according to the petitioners, the group paid additional tax of Rs. 1,06,00,000 on additional income disclosed in the revised returns for the assessment years 1970-71 to 1987-88. The assessments pursuant to the revised returns were finalized by the Department by accepting the disclosed income.

The petitioners have approached this Court contending that petitioners Nos. 1 to 9 are nationals and citizens of India. Petitioner No. 10 is the partnership firm. Petitioners Nos. 1 to 4 are assessees on their own. Petitioners Nos. 5 to 9 represent their respective HUFs. The petitioners are required to be assessed to tax under the provisions of the Income Tax Act (which hereinafter shall be referred to as the Act) as also under the provisions of the Wealth-tax Act, 1957 (which hereinafter shall be referred to as "the Wealth-tax Act" wherever applicable).

Though on August 22, 1986, search and seizure action was carried out on some of the members of the Jhunjhunwala group, there was no search warrant or search action in the case of the petitioners. In the course of search action, a statement was made u/s 132(4) that income will be voluntarily offered by the members of the Jhunjhunwala group. Pursuant to the said statement, the members of the group worked out figures for offer and voluntarily made written offer on January 27, 1987, for the total amount of Rs. 2.29 crores in the hands of the different members of the group for different years. The petitioners are the members of the Jhunjhunwala group.

According to the petitioners, the disclosure was made on the clear understanding from the concerned authorities that there will be no penal liability and penal interest if any will be waived. On the basis of such assurance by the authorities concerned and with a view to avoid litigation and to buy peace of mind, the offer was made at the much higher figure. The offer made has been accepted without any investigation or verification and the assessments have been completed accordingly. In the course of search, a diary called "Boston diary" was found which was the main item in question. The notings in the Boston diary could not have been deciphered by anyone except one or two persons from the Jhunjhunwala group. Without their initiative, help and assistance nothing could have been found by the Departmental authorities from the said Boston diary. According to the petitioners, this has been confirmed by the first respondent in his order dated October 31, 1994. Further, it is not in dispute and confirmed by the respondent that the members of the Jhunjhunwala group have voluntarily assisted and co-operated in deciphering the said diary and had voluntarily offered the amount for taxation.

So far as the assessment year 1987-88 is concerned, the offer was made even before the due date of the filing of the return was over and in the original return of income itself additional amount was offered. In these circumstances, no penalty could have been levied for the assessment year 1987-88 since the offer was the same in the original return of the income itself. However, certain penalty and interests were levied.

The total amount under different provisions totalled to Rs. 1.44 crores. Out of this, an amount of Rs. 49 lakhs. had already been paid and the balance amount of penalty remaining unpaid was Rs. 95 lakhs. The interest and penalty imposed was as under:

We may now reproduce the relevant provisions of Section 273A as it then stood:

273A-Power to reduce or waive penalty, etc., in certain cases.- (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 or Section 215 or Section 217 or the penalty imposed or imposable u/s 273:

if he is satisfied that such person:

(a) in 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 Assessing 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 u/s 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 the case referred to in Clauses (a), (b) and (c), cooperated in any inquiry 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 u/s 273 for the relevant assessment year or, where such disclosure relates or more than one assessment year, the aggregate of the penalty imposed or imposable under the said clause or of 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 inquiry 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.

(6) The provisions of this section as they stood immediately before their amendment by the Direct Tax Laws (Amendment) Act, 1989 (3 of 1989), shall apply to and in relation to any assessment for the assessment year commencing on the 1st day of April 1988, or any earlier assessment year, and references in this section to the other provisions of this Act, shall be construed as references to those provisions as for the time being in force and applicable to the relevant assessment year.

This sub-section was inserted by the Direct Tax Laws (Amendment) Act, 1987, with effect from April 1, 1989. The following Explanation below subsection (1) was omitted by the Finance Act, 1985, with effect from May 24, 1985.

Explanation 2.-Where any books of account, other documents, money, bullion, jewellery or other valuable article or thing belonging to a person are seized u/s 132 and within fifteen 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.

An application u/s 273A was jointly made on behalf of the petitioners by their application of January 27, 1987. This was further elaborated by communication of March 22, 1991.

In so far as the application u/s 273A(1)(i) is concerned, the Commissioner was pleased to hold that the petitioners had not satisfied the requirement that the disclosure was "voluntary". The petitioner had offered, complied with all the other conditions inasmuch as they had cooperated in the investigation, relating to assessment of Income Tax. They had also either paid or made satisfactory arrangements for payment of taxes or interests. The assessments were also made on the basis of the disclosures made by the assessees. As the Commissioner recorded a finding that the disclosure was not made voluntarily, he rejected the application u/s 273A(1)(i) which provides for waiver of penalty and interest.

Similarly in respect of the application u/s 273A(4) the Commissioner recorded a finding that the petitioners herein had not made out a case of genuine hardship and accordingly dismissed the said application.

At the hearing of this application, on behalf of the petitioners it is submitted by their learned Counsel that respondent No. 1 misdirected himself in law in relying on the judgment in the case of Tribhovandas Bhimji Zaveri Vs. Union of India (UOI) and Others, . It is submitted that the judgment in the case of Tribhuvandas was in the context of Section 3 Section 3 of the Voluntary Disclosure of Income and Wealth Act, 1976 (VDIS). It is, therefore, submitted that the ratio of the said judgment could not have been attracted while considering the provisions of Section 273A. On this count alone, it is submitted that the order is liable to be set aside. The learned Counsel submits that the petitioner in respect of Section 273A(1)(i)(a), (iii) had made disclosure prior to issuance of notice and further voluntarily and in good faith made true and full disclosure of the income and paid the full tax as also co-operated in the inquiry relating to the assessment of his income and either paid or made satisfactory arrangements for the payment of the tax or interest payable in consequence of the order passed under this Act. It is further submitted that in so far as Section 273A(1)(i), (ii) is concerned, the application was made prior to detection by the Income Tax Officer/Assessing Officer and as such also complied with the requirements. Respondent No. 1 has not addressed himself to the said contention and consequently the order made u/s 273A(1)(i) is liable to be set aside and the matter be remanded back to respondent No. 1 for reconsideration. In so far as the order passed u/s 273A(4) it is submitted that the application was only rejected on the ground that the petitioners had failed to make out the case of genuine hardship. In so far as the hardship is concerned, respondent No. 1 did not take into consideration that the petitioners themselves had directed the Unit Trust of India to dispose of the shares at any available price and to pay the sale proceeds directly to the Income Tax Department. It is, therefore, submitted that the order is liable to be set aside and consequently the matter be remanded back to respondent No. 1 for de novo consideration. The learned Counsel has placed reliance on several judgments in support of the contentions, to which we shall subsequently advert to in the course of deciding the controversy.

In so far as Section 273A is concerned, the conditions precedent before exercise of powers to reduce or waive penalty or interest by the Commissioner as per the law as settled are:

(a) there must be voluntary disclosure of income before the issue of notice u/s 139(2);

(b) the assessee must have made true and full disclosure of income in good faith prior to detection by the Assessing Officer;

(c) the assessee must have co-operated in the conduct of the assessment proceedings; and

(d) the assessee must have paid or made satisfactory arrangements for payment of tax or interest payable in consequence of the order passed under the Act with respect to the relevant assessment year.

In so far as Section 273A(4) is concerned, the predicates required to be satisfied are:

(1) On the facts of the case there would be genuine hardship to the assessee if the relief is not granted.

(2) The assessee has co-operated in the inquiry relating to the assessment or in proceedings for recovery of any amount due from him.

Considering these provisions, let us first consider the judgments relied upon on behalf of the petitioners. The learned Counsel has placed reliance in the judgment in the case of a Full Bench of the Allahabad High Court in the case of Bhairav Lal Verma Vs. Union of India (UOI), . The court there was considering the case under the provisions of section 273A(1)(i) of the Income Tax Act. The learned Full Bench after considering various judgments including the case of Tribhovandas Bhimji Zaveri Vs. Union of India (UOI) and Others, to which we shall advert subsequently, was pleased to hold that disclosure of concealed income after the Department has seized incriminating material disclosed, cannot be voluntary disclosure, because it is made under the constraint of exposure to adverse action by the Department. The court then observed that it cannot be held as a principle of law that the disclosure of income made after the search/raid cannot be voluntary. It is a question which has to be decided by the Department in each case on the basis of the material on record. If on record there is incriminating material with regard to the disclosed income, disclosure cannot be voluntary. But if the Department has no incriminating material with regard to the income disclosed, the disclosure will have to be treated as voluntary.

Reliance then was placed on the judgment of the learned single judge of the Madras High Court in K.M. Radha Krishna Chettiar and Company Vs. Commissioner of Income Tax and Another, . The learned judge was pleased to set aside the order impugned there on the ground that the Commissioner there had not applied his mind as there was no finding as to the compliance or otherwise of the conditions imposed u/s 273A nor the first respondent had assigned any reason whatsoever for refusing the relief sought for by the petitioner u/s 273A while exercising his discretion nor the first respondent had applied his mind or satisfied himself whether the petitioner made the disclosure with a fear relating to the imminent and proximate exposure to penal action.

Reliance is also placed on the judgment of the Andhra Pradesh High Court in K.S.N. Murthy and K. Apparao Vs. Chairman, Central Board of Direct Taxes and Others, . In that case, the learned judge on the facts there found that the order does not reflect due application of mind on the part of the Commissioner to the facts of the case. As exercise u/s 273A is quasi-judicial, it is incumbent on the Commissioner to apply his mind to all the relevant facts to satisfy himself whether the return has been filed voluntarily and in good faith making full and true disclosure and whether the assessee has co-operated with the Department in concluding the assessment and whether he has paid the tax or made satisfactory arrangements for payment thereof or in other words to satisfy himself as to the existence of the ingredients of the provisions and that the Commissioner cannot take into consideration the facts extraneous to the provisions or factors not germane to the decision making.

Reliance was also placed on the judgment of the learned single judge of this Court in Rohitkumar and Co. and others Vs. F.J. Bahadur, Commissioner of Income Tax and others, . The issue before the learned single judge was a case of seizure made on April 30, 1981. Six days thereafter the petitioner brought to the notice of the Deputy Director of Inspection (Intelligence) as well as the Commissioner that that amount belonged to them and should be treated as its income for the assessment year 1981-82. The previous year for the relevant assessment year had not ended. On these facts the learned court came to the conclusion that there is no question of concealment at the hands of the assessee far less a case of detection and the returns filed cannot but be held to be voluntary and in good faith.

Reliance was also placed in the case of a Division Bench of this Court in Dr. Mrs. Sudha Kankariya Vs. Commissioner of Income Tax and Others, . On the facts there, there was no search. The assessee husband on his own free will approached the Income Tax Officer, and made a voluntary disclosure before the Assessing Officer and offered for taxation amounts which were deposited by him and the assessee in Andhra Bank. The Commissioner declined to consider the application of the petitioner u/s 273A on the ground that there was no voluntary disclosure. It is on these facts that the learned Bench was pleased to hold that the disclosure was voluntary. The learned Bench observed that what is required to be seen is whether the voluntary disclosure is prior to the detection by the Assessing Officer and in that case that condition is fulfilled by the assessee. The order was accordingly set aside and the matter remanded back to the Commissioner.

We may now consider the judgment of the Supreme Court in Tribhovandas Bhimji Zaveri Vs. Union of India (UOI) and Others, . It is true that the said judgment was under the provisions of the Voluntary Disclosure of Income and Wealth Act, 1976. What came up for consideration was the applicability of Section 3 or Section 14 of the Act. The court observed that the object of the Act is to motivate the voluntary declaration of concealed income and with that object in mind the Schedule to the Act prescribes concessional rates of tax. It was then observed as under (page 376):

A declaration of concealed income made after books of account or other documents or valuable assets have been seized cannot be said to be a voluntary disclosure; it is made because the books, documents and assets seized would disclose to the assessing authority the concealment of income.

A Division Bench of this Court in NATWARLAL JOITRAM RAVAL Vs. COMMISSIONER OF INCOME TAX and Others, was pleased to observed as under (page 527):

We are inclined to agree with the Kerala High Court that in every case the Commissioner of Income Tax must, having regard to the search, seizure or statements, determine whether or not the disclosure subsequently made is or is not voluntary, but, we are also inclined to agree with the Allahabad High Court that where a disclosure is made consequent upon seizure of incriminating material relevant to the particular assessment year, the disclosure is made because adverse consequences under the Act are attracted. Such a disclosure is not voluntary.

It will be clear that in so far as the Division Bench of this Court is concerned, it was clearly of the opinion that when the disclosure is made subsequently to the seizure of incriminating material, the disclosure is made because of adverse consequences and such disclosure is not voluntary. On the facts of our case, the disclosure was made pursuant to search and seizure of incriminating material which includes the "Boston diary". The issue whether the authorities could have deciphered the documents on their own without the petitioner co-operating, in our opinion, is immaterial. There is nothing on record to state that in due course exercising their powers under the Act the authorities could not have been deciphered the seized material. The view taken by the court is in conformity with the view taken in Tribhovandas Bhimji Zaveri Vs. Union of India (UOI) and Others, .

We may then refer to two judgments under the provisions of Section 273A(4) of the Act in Garden Silk Weaving Factory Vs. Commissioner of Income Tax, . The Gujarat High Court was considering whether on the facts of the case, the Commissioner had considered the issue of genuine hardship. The court found that the issue of hardship had not been considered and accordingly remanded the matter back to the Commissioner.

In B.M. Malani Vs. Commr. of Income Tax and Another, , the Supreme Court was considering the issue of genuine hardship u/s 220(2A) of the Income Tax Act. Considering the provisions there, the court was pleased to hold that (headnote):

The ingredients of genuine hardship must be determined keeping in view the dictionary meaning thereof and the legal conspectus attending thereto.

In Benara Valves Ltd. and Others Vs. Commissioner of Central Excise and Another, , considering the expression "undue hardship" the court noted that there is a matter within the special knowledge of the applicant and has to be established by him. Secondly, under Indian conditions, it is normally related to economic hardship. The court observed the quoting in the judgment in S. Vasudeva Vs. State of Karnataka and others, that something which is not merited by the conduct of the claimant or is very much disproportionate to it.

Before answering the issue, we may now consider the effect of Explanation 2, though it has since been omitted. An Explanation is at times appended to a section to explain the meaning of the words contained in the section. See Dipak Chandra Ruhidas Vs. Chandan Kumar Sarkar, . When the Explanation opens with the words "for the purpose of this section" or when it is added towards the end of the section, it prima facie indicates that the Explanation applies to all the clauses in the section. See Controller of Estate Duty, Gujarat Vs. Kantilal Trikamlal, .

By the Explanation it was made clear that if any books or documents, money, bullion, amongst others are seized u/s 132 and within fifteen days of such seizure, the person makes a full and true disclosure of his income to the Commissioner, such person shall, for the purpose 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. The Explanation has since been omitted with effect from October 1, 1984. What this would mean is, firstly, the contention raised on behalf of the petitioners that the seizure of documents by authority other than Income Tax Officer/Assessing Officer is not detection by the Assessing Officer has to be rejected. Secondly and consequently once the documents are seized then any disclosure subsequently made would not be voluntary. The omitted Explanation only had sought to bring or to make it voluntary for a period which otherwise was not voluntary. The omission would only mean that this deemed voluntariness is now no longer legally available.

Considering this aspect of the matter and considering the judgment in Tribhovandas Bhimji Zaveri Vs. Union of India (UOI) and Others, and the judgment in the case of a Division Bench in NATWARLAL JOITRAM RAVAL Vs. COMMISSIONER OF INCOME TAX and Others, , it would be clear that any disclosure made subsequent to seizure of incriminating material, such disclosure would not be voluntary. The Full Bench judgment of the Allahabad High Court in Bhairav Lal Verma Vs. Union of India (UOI), , also makes that position clear. It is clarified there that pursuant to the search incriminating material is found and disclosure made, the disclosure is liable to be treated as not voluntary but if no incriminating material is found and still disclosure is made, then it would be treated as voluntary.

On that touch stone let us consider the facts and arguments advanced on behalf of the petitioner. The only ground that is contended to say that it was voluntary was that without their assistance, the Revenue authorities could not have deciphered the "Boston diary" and it is only because of the co-operation rendered by the petitioners that the authorities could decipher the said diary. In our opinion, that is immaterial. The diary contained incriminating material based upon which the additional income was disclosed. Merely because the petitioners co-operated in deciphering the documents that would not mean that the respondent-Revenue authorities could not have deciphered the same. The test is whether any incriminating material was found. On the petitioner''s own statement the diary contained incriminating material. The application was made after that incriminating material was found. In these circumstances, in our opinion, the contention urged on behalf of the petitioners must be rejected. It is true that the Commissioner did not consider this aspect of the matter. That, however, does not mean that the finding otherwise arrived at by the Commissioner that the disclosure was not voluntary can be faulted. In our opinion, considering the material on record no purpose would be served in remanding the matter back to the Commissioner for reconsideration on this aspect considering the law as now understood and the facts on record.

According to the petitioner, the Commissioner did not consider the various tests u/s 273A(4) for rejecting the application. The first order was made on June 21, 1993 u/s 273A(4). The order in respect of Section 273A(1) was made on October 31, 1994. There is no finding by Commissioner apart from hardship. Would this vitiate the order ? If respondent No. 1 considering the application holds that the two predicates have been satisfied one of which was hardship. Considering the test as laid down by the Supreme Court in the case of B.M. Malani Vs. Commr. of Income Tax and Another, and Benara Valves Ltd. and Others Vs. Commissioner of Central Excise and Another, the test is of undue or genuine hardship. The genuine difficulty would also mean that there is hardship that will be occasioned if the petitioner was called upon to pay the penalty. Such hardship normally would be financial hardship that would be occasioned. The only ground made out on behalf of the petitioner is by referring to their contention as raised in the written statement which were filed that the petitioners had entrusted all their shares to the Unit Trust of India to be sold at any available price but the petitioners in the said argument itself have thereafter stated as under:

This evidently shows the spirit of co-operation and desire to comply with the terms of Section 273A(4).

It was not on the ground of financial hardship. Documentary evidence by way of balance-sheet or any other material was not produced to show that the petitioners were not in a position to pay the penalty and if they had paid penalty, there would be adverse consequence on the petitioners. It was for the petitioners to produce that material to discharge the burden and for the respondents to consider the same. No such material was placed by the petitioner before respondent No. 1. In the absence of placing material, the petitioners cannot be heard to complain that there was non-compliance by the respondent Commissioner in considering the case u/s 273A(4) nor has any material been placed before this Court to show hardship that would be occasioned to the petitioners assuming it could be placed. The learned Commissioner has recorded a finding that the petitioner did not produce any evidence to show that he did not have adequate financial resources. That by itself must have met the test. However, in the absence of the petitioners placing any other material on hardship, the findings recorded by the Commissioner cannot be faulted. At any rate, in our opinion, no purpose would be served in the exercise of our extraordinary jurisdiction to remand the matter back to the Commissioner.

The only other argument advanced was in respect of the penalty and interest imposed in so far as the assessment year 1987-88 is concerned relying on the judgment in the case of Rohitkumar and Co. and others Vs. F.J. Bahadur, Commissioner of Income Tax and others, . The returns were filed only after the seizure of the incriminating material. The issue of whether penalty or interest could be levied was in issue in proceedings for adjudication. In the instant case, the levy of penalty or interest including for the assessment year 1987-88 has not been challenged and has become final. Section 273A is an independent power notwithstanding anything contained in the Act. Therefore, even if interest and penalty has been levied in proceedings for adjudication, the respondents have power u/s 273A to reduce the penalty or interest u/s 273A as it then stood. The test for waiver or reduction, for exercise of discretion are different. u/s 273(4), the party applying must make out a case of genuine hardship. The finding by the Commissioner is that the respondent has not made out a case of genuine hardship. In so far as Section 273A(1) is concerned, the disclosure must be voluntary. The Commissioner has come to the conclusion that the declaration was not voluntary. For the assessment year 1987-88, it is true that the returns were filed in the ordinary course. The return was based on additional income contained in the incriminating material contained in the Boston diary. It is obvious if the material had not been seized during search and seizure operations including the Boston diary, the income in terms of the diary could never have been disclosed as in the case of the past years. In the circumstances if the respondents have come to the conclusion that it was not voluntary, and refused to grant relief, it will not be a fit case for us to exercise our extraordinary jurisdiction.

For all the above said reasons, we find no merit. Hence, rule discharged. There shall be no order as to costs.