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L. Sanyasi and Sons Vs. Commissioner of Income-tax and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case No. 30 of 1978
Judge
Reported in(1979)10CTR(Ori)313; [1979]118ITR459(Orissa)
ActsIncome Tax Act, 1961 - Sections 273A(1) and 273A(4); Constitution of India - Articles 226 and 227
AppellantL. Sanyasi and Sons
RespondentCommissioner of Income-tax and anr.
Appellant AdvocateB.K. Mohanti, Adv.
Respondent AdvocateStanding Counsel
Excerpt:
.....mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the assessing officer recommended the claim of the assessee for reduction in demand......been labelled as one under section 273a(4) of the act, the commissioner should not have refused to exercise his jurisdiction under section 273a(1) of the act; and the reports of the assessing officer have not been taken into account and the considerations which have weighed with the commissioner in finding against the assessee are not germane to the requirements of law.4. undoubtedly, labelling of a petition should not be unduly emphasised upon and if the commissioner had jurisdiction to waive both interest as also penalty, the question of reducing or waiving the interest as provided under section 273a(1) (ii) and (iii) of the act could have been considered by the commissioner. from the application made before the commissioner, it appears that the petitioner was making grievance in.....
Judgment:

R.N. Misra, J.

1. This is an application for a writ of certiorari by a petitioner who is an assessee under the I.T. Act of 1961 (hereinafter referred to as the 'Act') and the order of the Commissioner of Income-tax, opposite party No. 1, dismissing the petition under Section 273A(4) of the Act has been asked to be quashed.

2. Assessee is a registered firm and in respect of the assessment years 1970-71 and 1971-72, as against tax demands of Rs. 2,231 and Rs. 1,696, respectively, demand of penalty and interest under different provisions of the Act of Rs. 10,300 and Rs. 3,745, respectively, was raised against it. Assessee applied to the Commissioner under Section 273A(4) of the Act asking for waiving the demand of penalties and interest. It claimed that the firm and its partners were not in a position to meet the demands and, in the circumstances, the same may be waived. The Assessing Officer recommended the claim of the assessee for reduction in demand. After hearing assessee's counsel and considering the materials on record including the reports of the authorities, the Commissioner by order dated November 23, 1976, rejected the same.

3. Mr. Mohanti for the petitioner contends that the judicial discretion vested in the Commissioner has not been appropriately exercised ; merely because the revision petition has been labelled as one under Section 273A(4) of the Act, the Commissioner should not have refused to exercise his jurisdiction under Section 273A(1) of the Act; and the reports of the Assessing Officer have not been taken into account and the considerations which have weighed with the Commissioner in finding against the assessee are not germane to the requirements of law.

4. Undoubtedly, labelling of a petition should not be unduly emphasised upon and if the Commissioner had jurisdiction to waive both interest as also penalty, the question of reducing or waiving the interest as provided under Section 273A(1) (ii) and (iii) of the Act could have been considered by the Commissioner. From the application made before the Commissioner, it appears that the petitioner was making grievance in regard to interest as also penalty.

5. The jurisdiction which had been invoked is a discretionary one and if the Commissioner has taken the material aspect into consideration and has refused to exercise his discretion, we do not think it would be open to this court to interfere with his discretion. The statutory considerations to be taken into account in disposing of an application under Section 273A(1) have been provided therein in Clauses (a), (b) and (c). Similarly, in the matter of exercising jurisdiction under Sub-section (4), the considerations have also been statutorily indicated. The Commissioner has, as a fact, taken some of these aspects into consideration while disposing of the application. The Commissioner has found that the assessee showed undue preference to other creditors and has assets still left with it. He did not find that the assessee had co-operated in the matter of recovery of taxes due from it. In what proportion the Commissioner would attach importance to the different considerations statutorily provided for while proceeding to exercise his discretion cannot be regulated and, at any rate, it would not be appropriate for us to interfere with his orders by finding disproportionate stress on any of the statutory considerations. We are of the opinion that interference in this case would not be justified.

6. The writ application accordingly fails and is dismissed. We make no, order for costs.

P.K. Mohanti, J.

7. I agree.


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