TMI Blog1996 (11) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... een fully paid, which is one of the conditions to be satisfied for waiver of interest under sections 139(8) and 217 of the Act (annexure G). It, seems the petitioner moved an application under section 154 of the Act for rectification. The petitioner filed his application under section 154 of the Act on January 3, 1996, with a request to the Commissioner for early disposal of the petition and also for giving an opportunity of being heard in support of his case. The application under section 154 of the Act was entertained and was dismissed by the Commissioner as per annexure G on June 22, 1996. This order is under challenge before this court, i.e., the order passed by the Commissioner under section 154 of the Act. The petitioner alleges that the Commissioner being a quasi-judicial authority is bound to hear the petitioner and pass an order, and that the Commissioner had passed the order in total negation of the principles of natural justice, inasmuch as the petitioner has not been given an opportunity of being heard. It is also alleged that the petitioner has satisfied all the conditions except the condition regarding payment of tax on the income declared. According to the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that as stated in the order passed by the first respondent under section 154 of the Act, there is non-fulfilment of the condition as envisaged under section 273A of the Act. It is also pointed out that the contention urged by the petitioner that payment of assessed tax before filing of the petition under section 273A of the Act should be taken as sufficient compliance with the requirement of payment of tax on the disclosed income is not tenable. It is pointed out that section 273A envisages a condition precedent for grant of any relief of waiver or reduction of interest that the applicant ought to have "paid tax on the income so disclosed". Inasmuch as the petitioner has not paid tax on the income so disclosed, it is stated that rightly the application under section 273A has been rejected. So also the rectification petition filed by the petitioner under section 154 of the Act. It is pointed out that, admittedly, the petitioner has not paid the tax on the returned income, as such there is non-fulfilment of the condition as envisaged under section 273A of the Act. It is also pointed out that the first respondent has passed a speaking order under section 154 of the Act and non-affordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of the Act is not maintainable as there is no error apparent from the record. According to learned counsel for the Department, section 154 does not cover any mistake which could be discovered by complicated process of investigation, argument or proof. Learned counsel points out that the error which is apparent on the face of the record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law. According to learned counsel, the power of rectification can be exercised only when there is a mistake apparent on the face of the record and that mistake is obvious, patent and should not be a debatable point of law. Learned counsel for the Department took me through the provisions of section 273A as it stood then and points out that clause (c) of section 273A(1) has not been satisfied for the petitioner to obtain the benefit of waiver of interest. Learned counsel relied upon two decisions of the Madras High Court reported in S. M. Ziaddin v. CIT [1993] 203 ITR 136 and B. Thangammal v. CIT [1995] 215 ITR 261 in support of his contention that if the conditions set out in section 273A of the Act are not complied with, the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, 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 under section 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 all the cases referred to in clauses (a), (b) and (c), co-operated in any enquiry 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 1.---For the purposes of this sub-section, a person shall be deemed to have made full and tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has held as follows : "The conditions precedent for the exercise of the discretion for waiver or reduction of the penalty or interest are those mentioned in clauses (a), (b) and (c) of section 273A(1) of the Income-tax Act, 1961. Disclosure of income coupled with the payment of the tax admittedly due on the admitted income is a condition precedent for entitling an assessee for consideration of his claim for waiver of the penalty as well as the interest chargeable and unless the condition is satisfied the court cannot interfere with the refusal to exercise his discretion by the Commissioner of Incometax under section 273A. . . A statutory prescription in the nature of a condition precedent cannot be mutilated by taking into account the mistake pleaded or bona fides alleged. Consequently, it could not be held that any error had been committed in the exercise of the discretion by the Commissioner of Income-tax." However, a Division Bench of the Gujarat High Court has struck a different note in Parshottam Nagindas v. B. R. Adwalpalkar [1996] 218 ITR 392. The Division Bench while considering section 273A of the Act has held that it is a beneficial provision and should be interpret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal ; it will be within time and no question of limitation will arise, but if the tax is paid after the period of limitation has expired it will be taken to have been filed on the day when the tax is paid even though the memorandum of appeal was presented earlier and within the period of limitation. The question will then have to be decided whether there was sufficient cause for condonation of delay." Learned counsel for the petitioner relies upon this decision in support of his contention that no time limit is prescribed in the provisions of the Income-tax Act, 1961, to claim the benefit under section 273A of the Act. I am unable to agree with the contention of learned counsel. The principle laid down by the Supreme Court in the case cited supra is not applicable to a question of waiver of interest under section 273A of the Act. That apart, I am not convinced that this is a case where the petitioner can challenge the order of refusal to rectify the order passed under section 154 of the Act. It is settled law that any question which comes within the scope of section 154 of the Act, it should be apparent from the record. It is settled law that the mistake should be apparent fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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