TMI Blog2004 (8) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... jecting the waiver application is misconceived - Chief Commissioner is directed to decide the matter afresh in accordance with law after giving an opportunity of hearing to the petitioner. - - - - - Dated:- 31-8-2004 - Judge(s) : R. K. AGRAWAL., K. N. OJHA. JUDGMENT The judgment of the court was delivered by R. K. Agrawal J.- By means of the present writ petition filed under article 226 of the Constitution of India the petitioner seeks a writ, order or direction in the nature of certiorari quashing the order dated January 22, 2004 passed by the Additional Commissioner of Income-tax, Meerut, respondent No. 1 filed as annexure 10 to the writ petition and other consequential reliefs. Briefly stated the facts giving rise to the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty and interest. The Chief Commissioner of Income-tax, Meerut vide order dated July 23, 2003, had rejected the petition for waiver filed by the petitioner as premature. The order dated July 23, 2003, was challenged by the petitioner before this court in C. M. Writ Petition No. 1001 of 2003 which was finally disposed of vide judgment and order dated October 29, 2003, with a direction that the petitioner's application dated September 4, 2003, which had been filed subsequently be treated as a fresh waiver application and should be decided within two months on the production of the certified copy of the order passed by this court. Pursuant to the direction given by this court, the Chief Commissioner of Income-tax, Meerut vide order dated Janua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d had chosen to ignore the provision of section 150(1) of the Act. According to the Chief Commissioner of Income-tax, Meerut if for some reason it was difficult for the assessee to file the return for the period prior to 1995-96, the assessee should have disclosed the entire interest income on receipt basis i.e., in the year of receipt and should have paid the tax. Thus the entire tax due on the enhanced compensation is not paid by the assessee. We have heard Shri Rakesh Ranjan Agrawal, learned counsel for the petitioner and Shri Dhanjai Awasthy, learned standing counsel appearing for the respondents. Learned counsel for the petitioner submitted that the petitioner had filed the returns of income for the assessment years 1995-96 to 2001 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. v. CIT [1999] 239 ITR 548 (Mad); (5) G.T.N. Textiles Ltd. v. Deputy CIT [1996] 217 ITR 653 (Ker); and (6) A.K. Azad v. CIT [1996] 220 ITR 349 (Ker). Having heard learned counsel for the parties, we find that the Chief Commissioner of Income-tax, has been empowered by the Central Board of Direct Taxes under clause (a) of sub-section (2) of section 119 of the Act to reduce or waive interest charged under section 234A, 234B or 234C vide Notification No. F. No. 400/234/95-IT (B) dated May 23, 1996. In the aforesaid Notification under clause 2(e) the condition is that where a return of income could not be filed by the asses-see due to unavoidable circumstances and such return of income is filed voluntarily by the assessee or his legal h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a statute invests a public officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling the courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right-public or private-of a citizen. In the case of Siemens Engineering and Manufacturing Co. of India Ltd. v. Union of India, AIR 1976 SC 1785 the apex court has held that where an authority makes an order in exercise of quasi judicial function it must recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Income-tax Act to waive the interest. In the case of Bhairav Lal Verma [1998] 230 ITR 855 a Full Bench of this court has held that the full and true disclosure of income particulars made voluntarily and in good faith by the assessee is a condition precedent for waiver of penalty under section 273A of the Act. The Full Bench has further held that as a principle of law it cannot be held that the disclosure of the concealed income after the raid or search cannot be voluntary. It is a question which has to be decided by the Department in each case on the basis of the material available on the record. The criteria for deciding this question is to find out as to whether the Department has any incriminating material with regard to the disclosed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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