JUDGMENT
Aloke Chakrabarti, J.
1. This is an appeal filed against the judgment and order passed on November 28, 2001, by the learned single judge deciding the Writ Petition No. 428 of 1997 (Satish Kapoor v. CIT [2002] 255 ITR 93).
2. The facts relevant for the present purpose in brief are that the late Bisnu Narayan Kapur was regularly assessed under the Income-tax Act. After his death as a bachelor on March 22, 1992, leaving behind him the writ petitioner as one of his legal heirs, it was detected that some of the investments of the deceased assessee had not been disclosed by him in his return and, therefore, the petitioner voluntarily filed returns for the concerned assessment years 1984-85 and 1987-88 to 1990-91 making complete and true disclosure of the income of the deceased assessee and also paid tax on the said income. On the application filed by the writ petitioner for reassessing the income, in course of the assessment proceeding, the petitioner was informed that some small amount of income for the assessment years 1983-84, 1985-86 and 1986-87 had not been disclosed and the petitioner was asked to file returns for the said assessment years also and to pay the taxes.
3. On August 20, 2002, the petitioner made an application in respect of the assessment years 1984-85 and 1987-88 to 1990-91 for waiver of penalty leviable under Section 271(1)(c)(iii) and interest payable under the said Act The said application was filed under Sub-section (1) of Section 273A of the Act.
4. On satisfaction of the Commissioner of Income-tax about the fulfilment of all the stipulated conditions, the approval of the Chief Commissioner of Income-tax was sought for waiver of the penalty since the amount as disclosed exceeded Rs. 5 lakhs. The Chief Commissioner took the view that Sub-section (4) of Section 273A overrides all other provisions of Section 273A and as one of the requirements under the said Sub-section (4), namely, genuine hardship would be caused to the assessee in case of non-waiver, was not satisfied, and therefore the approval could not be granted. Accordingly, on February 20, 1996, the Commissioner rejected the prayer for waiver of penalty though the interest charged under Section 217 for the assessment years 1984-85, 1987-88 and 1988-89 was waived.
5. On April 23, 1996, the petitioner filed an application before the Commissioner of Income-tax for rectification of the said order dated February 20, 1996, on the ground that the requirements contained in Sub-section (4) of Section 273A were extraneous as the application filed by the petitioner was one under Sub-section (1) and not under Sub-section (4). After the matter was referred to the Chief Commissioner who refused to interfere, the Commissioner rejected the application for rectification by his order dated July 30, 1996. Challenging the said two orders, the writ application was filed which was decided by the judgment impugned in the present appeal.
6. Mr. J.P. Khaitan, learned counsel for the appellant, advanced two contentions. The first contention of the appellant is that writ petition was dismissed holding that the order was appealable and therefore, for not availing of alternative remedy available, no interference was made. It is stated by learned counsel for the appellant that in fact against the impugned order no appeal lies and he referred to Sections 253 and 246 of the Income-tax Act. It is stated that the impugned order was passed under Section 273A by the Commissioner of Income-tax. Appeals are available before the Tribunal in cases mentioned in Section 253 but the order under Section 273A is not appealable thereunder. It is further stated that Section 246 as relied on by the learned judge in the court below is not applicable in the present case. It is stated that therefore orders impugned being not appealable, the writ petition ought to have been entertained.
7. The second contention of learned counsel for the appellant is that the provisions of Sub-section (4) of Section 273A do not override Sub-section (1) thereof and it was in addition to Sub-section (1). Therefore, the application filed by the petitioner under Sub-section (1) of Section 273A, could not be rejected on the ground of not satisfying any condition mentioned in Sub-section (4) of the said section.
8. Learned counsel referred to the judgments in the case of Apex Finance and Leasing Ltd. v. CIT ; Jaswant Rai v. CBDT and Revenue ; Patel Engineering Co. Ltd. v. C. B. Rathi ; Laxman v. CIT [1988] 174 ITR 465 (Bom) and Guru Nanak Estates v. CIT .
9. Mr. Samaddar, learned counsel for the Revenue, contended that as the petitioner filed rectification application under Section 154, the order sought to be rectified merged in the order passed under Section 154 and such order passed by the Commissioner of Income-tax passed under Section 154 is appealable under Section 246 of the Act and in this connection reference was made to Sub-section (c) thereof. It is stated that in such circumstances, remedy of appeal being available under Section 246, the writ petition was rightly refused to be entertained. The second contention of the respondent is that the prayer for rectification was rightly refused as necessary grounds for rectification were not available to the petitioner and in such circumstances, the original order having merged in the rectification order, the contention with regard to the scope of Sub-sections (1) and (4) of Section 273A can no more be urged by the petitioner.
10. After considering the aforesaid contentions of the respective parties and perusing the materials on record and also the provisions of law relied on by the parties, I find the authorities under the Act have been mentioned in Section 116 of the Act and in Clause (c) thereof mention was made of “Directors of Income-tax or Commissioners of Income-tax or Commissioners of Income-tax (Appeals)”. Further in Section 2(7A) the Assessing Officer has been defined and a perusal of the said provision shows that the Commissioner of Income-tax is not an Assessing Officer.
11. It appears that under Clause (c) of Sub-section (1) of Section 246 an order under Section 154 is appealable. But the opening sentence of Sub-section (1) of Section 246 provides that the appeal is available against the order of an Assessing Officer (other than the Deputy Commissioner) only and in the present case the order having been passed by the Commissioner of Income-tax who is not an Assessing Officer, no provisions of appeal under Section 246 is available.
12. Similarly, Section 253 which provides for appeals to the Appellate Tribunal shows that any assessee may appeal to the Appellate Tribunal against an order passed by a Deputy Commissioner (Appeals) before October 1, 1998, or, as the case may be, a Commissioner (Appeals) under various sections. Clause (c) of Sub-section (1) of Section 253 shows that such appeal can be filed against an order passed by the Commissioner under specified sections which do not include Section 273A. Therefore, it is apparent that neither the order under Section 273A nor the order under Section 154 passed by the Commissioner of Income-tax is appealable either under Section 246 or under Section 253. Therefore, it appears that the writ petition could not be refused to be entertained on the ground of not availing of any alternative statutory remedy.
13. With regard to the scope of Sub-section (1) and Sub-section (4) of Section 273A, it appears that the opening words of Sub-section (4) “without prejudice to the powers conferred on him by any other provision of this Act. . .” make it clear that the said sub-section was not a provision overriding the provisions of Sub-section (1) and is clearly a provision in addition to Sub-section (1). The application filed by the petitioner admittedly is one filed under Sub-section (1) of the said section. Therefore, when conditions required for exercising power under Sub-section (1) are satisfied, the authority ought to have exercised the power as decided in the cases of Laxman [1988] 174 ITR 465 (Bom) and Apex Finance and Leasing ltd. .
14. The fact that the conditions mentioned in Sub-section (4) of Section 273A have not been satisfied is not a relevant factor in these circumstances for refusing exercise of power under Sub-section (1).
15. Moreover, the fact that the Commissioner asked for approval of the Board shows that he also was satisfied that the pre-conditions had been fulfilled in the case.
16. In view of the aforesaid circumstances, it appears that the concerned authority has failed to exercise jurisdiction vested in it and the finding in the impugned judgment that the order was not without jurisdiction, cannot stand.
17. In view of the aforesaid finding, the penalty charged is also waived and the waiver petition is allowed. The judgment and order dated July 30, 1996, is modified to the aforesaid extent. Therefore, as question of rectification of the order no more arises the said application is dismissed and the order passed thereon is quashed. The writ petition and the appeal are allowed.
S.K. Gupta, J.
18. I agree.
