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Kalindi Investment (Pvt.) Ltd. Vs. Commissioner of Income-tax, Gujarat-i - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Application No. 1433 of 1978
Judge
Reported in[1979]118ITR973(Guj)
ActsIncome Tax Act, 1961 - Sections 273A(1)
AppellantKalindi Investment (Pvt.) Ltd.
RespondentCommissioner of Income-tax, Gujarat-i
Appellant Advocate B.R. Shah, Adv.
Respondent Advocate R.P. Bhatt, Adv.
Excerpt:
- - 273a(1) were satisfied or not. 139, and under clause (c), in cases referred to in clause (iii), the commissioner has to be satisfied that such person has, prior to the issue of a notice to him under sub-s. 148, voluntarily and in good faith made full and true disclosure of his income and has paid the tax on the amount so disclosed. 117a to find out whether there was sufficient cause for the delay in filing the return of income and, if he was so satisfied, to reduce or waive the amount of interest payable under s......could be said to be sufficient cause to justify a waiver of reduction. it is obvious that the question of sufficient cause arises under r. 117a and not under s. 273a. it was for the ito concerned under r. 117a to find out whether there was sufficient cause for the delay in filing the return of income and, if he was so satisfied, to reduce or waive the amount of interest payable under s. 139(8). however, the question of sufficient cause does not arise for consideration in a case under s. 273a(1)(iii). under these circumstances, it is obvious that the decision of the commissioner has been, at least in part, swayed by an extraneous consideration, i.e., extraneous to what he had to consider under clause (c) of s. 273a(1). under these circumstances, this special civil application is.....
Judgment:

Divan, C.J.

1. Mr. R. P. Bhatt, who appears for the respondents, waives service, Mr. Bhatt further says that, in view of the facts in this case, the matter may be decided on the statements made in the petition. It is clear that the first respondent, Commissioner of Income-tax, purported to exercise his power under s. 273A of the I.T. Act. The only question that was before him was to consider whether the conditions of clause (c) of s. 273A(1) were satisfied or not. We are not concerned in this case with waiver or reduction or any other clause except clause (8) of s. 139. Section 273A(1)(iii) gives power to the Commissioner, notwithstanding anything contained in the Act, whether on his own motion or otherwise, to reduce or waive the amount of interest paid or payable under sub-s. (8) of s. 139, and under clause (c), in cases referred to in clause (iii), the Commissioner has to be satisfied that such person has, prior to the issue of a notice to him under sub-s. (2) of s. 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 under s. 148, voluntarily and in good faith made full and true disclosure of his income and has paid the tax on the amount so disclosed. under r. 117A, power vests in the ITO, subject to the prior approval of the IAC, under certain circumstances to reduce or waive interest in any of the cases falling under s. 139 and not merely under sub-s. (8) of s. 139. These powers conferred on the Commissioner under s. 273A and on the ITO under r. 117A are totally different. In the present case, we find that the order passed by the Commissioner that he has considered whether tax planning could be said to be a sufficient cause for the delay in filing the return or, whether tax planning could be said to be sufficient cause to justify a waiver of reduction. It is obvious that the question of sufficient cause arises under r. 117A and not under s. 273A. It was for the ITO concerned under r. 117A to find out whether there was sufficient cause for the delay in filing the return of income and, if he was so satisfied, to reduce or waive the amount of interest payable under s. 139(8). However, the question of sufficient cause does not arise for consideration in a case under s. 273A(1)(iii). Under these circumstances, it is obvious that the decision of the Commissioner has been, at least in part, swayed by an extraneous consideration, i.e., extraneous to what he had to consider under clause (c) of S. 273A(1). Under these circumstances, this special civil application is allowed and the order, annex.'F' to the petition, being the order dated April 27, 1978, passed by the first respondent, is quashed and set aside. under the circumstances, the Commissioner is directed to take up for reconsideration the petitioner's application under s, 273A and to determine it afresh in accordance with law and in the light of the observations made in this judgment. Rule is made accordingly absolute. The Commissioner will pay the costs of this petition to the petitioner.

2. Application allowed.


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