TMI Blog1978 (3) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... the returns filed by the petitioner. Hence, a notice was issued on February 8, 1971, under section 143(2) of the Act requiring the presence of the petitioner. The petitioner's representative appeared on September 22, 1971, before the Income-tax Officer. On the aforesaid date the Income-tax Officer required the petitioner to file further details in respect of matters which are mentioned below : (1) Details of capital account from 1963-64 to date with details of all investments year-wise, and particulars of personal expenses, including marriages, deaths and illness in the family in those years ; (2) Detailed family tree with age, educational qualifications, etc., of each living or deceased coparcener during these years ; (3) Detailed copies of profit and loss account, balance-sheet and personal account for all the years ; (4) Valuation certificates of the bagh including plantation and irrigation facilities installed and house and shops from an approved valuer ; (5) Details of all bank or post office accounts or deposits and shares, etc., held in the name of any of the coparceners. (6) Details of all furniture, fittings and assets of domestic nature, viz , sofa, ward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication for the waiver of the penalty under section 271(4A) of the Act. However, before this application for waiver was moved the Income-tax Officer had already issued notices under section 148 for the assessment years 1965-66 to 1968-69 and 1970-71. So far as the assessment years 1969-70 and 1971-72 are concerned, the Income-tax Officer issued notices under section 148 of the Income-tax Act on 24th March, 1975, and 20th March, 1975, respectively. The assessments for all these aforesaid years, viz., 1965-66 to 1971-72, were completed on 17th March, 1975. While making the assessment orders, the Income-tax Officer also issued notices to the petitioner in respect of the years mentioned above under sections 271(1)(c), 271(1A) and 273. Thereafter, a letter was received by the petitioner from the office of the Commissioner of Income-tax stating that as there had been an amendment to the Income-tax Act with effect from 1st October, 1975, and section 271(1A) had been replaced by section 273A, the petitioner's application filed earlier for the waiver of penalty had become infructuous and that the petitioner could file another application under the newly added section, if so advised. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d true disclosure of such particulars ; ........" The first submission made by the learned counsel in support of the writ petition was that the Commissioner of Income-tax having not given an opportunity of oral hearing before rejecting the application filed by the petitioner under section 273A, the impugned order is invalid and was thus liable to be quashed. Admittedly, there is no provision in section 273A of the Act providing for an opportunity of hearing to be given to an assessee who files an application for waiver or reduction of the penalty imposed or imposable. In fact, there is no provision in the Act providing for oral hearing. It would be seen from the scheme of the Act that wherever an oral hearing is required to be given, it is specifically so provided in those provisions. There is nothing in section 273A of the Act requiring the Commissioner of Income-tax to give an oral hearing before deciding the application. The question, however, that arises for consideration is whether the principles of natural justice could be invoked to the present proceedings contemplated by this Act and the requirement of giving an oral hearing be insisted upon on that basis. It is well set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The facts, which according to the case of the petitioner entitled him to get the relief contemplated by section 273A, were known to him. He mentioned all those facts in the application and stated therein that he filed the returns voluntarily and in good faith after having made true and full disclosure of such particulars as were required by the law. It was this application which was considered by the Commissioner of Income-tax and rejected as, in his opinion, no grounds were made out for the relief. The Commissioner of Income-tax could not and in fact did not rely on any fact while rejecting the application which was not known to the petitioner and which had taken him by surprise. He considered the facts and found that as the returns were not filed voluntarily, no relief could be given to the petitioner. In view of the above, we find that the petitioner had full and complete opportunity to make a representation. Hence, the first submission made by the learned counsel for the petitioner has no merit and is thus rejected. The second submission advanced was that the order passed by the Commissioner of Income-tax being not a speaking order, having met or decided all the points ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Whether he would reduce or waive the amount of penalty imposed or imposable is of course a matter of discretion but that too will have to be exercised keeping in view the facts of the case, and not arbitrarily. The power has to be exercised only in conformity with the provisions of the section and the Act. In Kundan Lal Behari Lal v. Commissioner of Wealth-tax [1975] 98 ITR 359 (All), while dealing with a similar provision of waiver of penalty contained in section 18(2A) of the Wealth-tax Act, a Division Bench of this court observed that the Commissioner cannot refuse to exercise the power on the ground that it is discretionary. It is coupled with a duty. Accordingly, we are not prepared to hold that the power conferred by section 273A was not quasi-judicial in nature. So far as the merits of the point urged is concerned, we have already quoted the order by which the application filed by the petitioner was rejected. While rejecting the application the Commissioner of Income-tax found that the returns were filed by the petitioner only after a detailed inquiry on different points had been initiated against him. It further says that since the case of the petitioner was detected by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the meaning of that word. In the instant case, it is only when the Income-tax Officer detected the concealment of the particulars that he made inquiry with respect to the matters mentioned above. Accordingly, it is not possible to say that the returns for the years 1963-64 to 1968-69 had been filed by the petitioner prior to the detection of the concealment of the particulars of the income. In these circumstances, the filing of the revised returns, as a matter of fact, was not the voluntary act of the petitioner. Hence, it cannot be said that the Commissioner of Income-tax committed any mistake in holding that the filing of the returns by the petitioner was not voluntary. Shri R. K. Gulati, counsel for the petitioner, however, emphasised that since the inquiry was made in the assessment year 1969-70, the deduction, if any, was with respect to the concealment of particulars of that year and the prayer for the waiver of the penalty in respect of other years could not be rejected on that ground. It is true that the information was called for in the course of the proceedings for the assessment year 1969-70, but the same was of such a nature that would have enabled the Income- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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