TMI Blog2004 (2) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee had suppressed the fact - We quash and set aside the order of the Commissioner of Income-tax passed under section 273A, and remand the matter back to the Commissioner of Income-tax to decide the application regarding reduction or waiver of penalty and interest on the merits on the footing that all the pre-conditions for grant of waiver of penalty and interest contemplated under section 273A of the Income-tax Act are complied with by the assessee. - - - - - Dated:- 25-2-2004 - Judge(s) : V. C. DAGA., J. P. DEVADHAR. JUDGMENT The judgment of the court was delivered by J.P. DEVADHAR J. - In this writ petition, the petitioner has challenged the order dated March 25,1994, passed by the Commissioner of Income-tax, Pune, declini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it Petition No. 457 of 1993, the said ex parte order was set-aside on February 8, 1993, and the Commissioner of Income-tax was directed to decide the matter afresh after hearing the petitioner. Thereupon, by the impugned order dated March 25,1994, the Commissioner of Income-tax has rejected the claim of the petitioner on the ground that the requirements of section 273A of the Income-tax Act were not met, viz., the returns filed were neither voluntary nor in good faith and, therefore, not eligible for any relief under section 273A of the Income-tax Act. Challenging the said order, the present petition has been filed. Mr. S.N. Inamdar, the learned advocate appearing on behalf of the petitioner, submitted that on the date on which the return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eged audit query was neither intimated to the assessee nor the audit party had any incriminating document against the assessee. The fact that the assessee was a partner of the firm was already known to the Department. Accordingly, it was submitted that in view of the audit query raised in the case of the firm, it could not be said that the returns filed were not voluntary so as to decline waiver of penalty and interest under section 273A of the Income-tax Act. Mr. Inamdar relied upon the judgment of the apex court in the case of Jaswant Rai v. CBDT [1998] 231 ITR 745 and submitted that the principal condition for grant of relief under section 273A is that the assessee should have voluntarily and in good faith made full disclosure of her i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under the Act. Therefore, the Commissioner of Income-tax was justified in holding that the conditions set out in section 273A have not been complied with. Accordingly, it was submitted that the Commissioner of Income-tax was justified in rejecting the application of the petitioner. Mr. Desai, relied upon the judgment of this court in the case of Saberaj Industries v. F.J. Bahadur, CIT [1996] 217 ITR 831 in support of his contention. He submitted that as the assessee had requested the Income-tax Officer to treat the returns which were time-barred, to be returns in compliance with section 148 of the Income-tax Act, it could not be said that the pre-conditions laid down by section 273A of the Income-tax Act have been complied with and, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rily and in good faith, then the penalty and interest leviable for late filing of the return could be waived by the Commissioner of Income-tax under section 273A of the Income-tax Act. In the facts of the present case, we are of the opinion that the assessee had voluntarily and in good faith made full and true disclosure of her income and had also paid the taxes payable thereon. Non-payment of penalty and interest during the pendency of the application for waiver under section 273A cannot be said to be non-co-operation on the part of the assessee. Therefore, in our opinion, the Commissioner of Income-tax was not justified in holding that the preconditions set out under section 273A of the Income-tax Act have not been fulfilled in the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income-tax Act. The apex court in the case of Jaswant Rai [1998] 231 ITR 745 has held that the disclosure could be made by filing a return or by submitting a petition to the Commissioner. Thus, what is relevant for section 273A is the full and true disclosure made voluntarily and in good faith and if such a disclosure is made through the belated returns it does not cease to be a voluntary disclosure. If the disclosure made in the belated returns are voluntary and in good faith and are accepted, then the application for waiver under section 273A of the Income-tax Act cannot be rejected on the ground that there is no voluntary disclosure. The contention of the Revenue in its affidavit in reply that the belated return is a non est return ..... X X X X Extracts X X X X X X X X Extracts X X X X
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