M/S Alukkas Jewellery v. Commissioner Of Income Tax

JUDGMENT

1. A common question is involved in the nine writ petitions. That relates to the interpretation of Section 273A of the Income Tax Act, 1961, and in particular the scope and ambit of Explanation 2 thereof. Three firms and their partners are involved as parties in these writ petitions. Two of the firms are engaged in jewellery business, Alukkas Jewellery, Trichur and Alukkas Jewellery, Calicut. The third firm runs a hotel, Alukkas Tourist Home. O.P Nos. 5641, 5642 and 5643 are by the firms. Alukkas Jewellery. Calicut, Alukkas Tourist Horae, Trichur and Alukkas Jewellery, Trichur respectively. Varghese and Joy are partners in the three firms referred to above. The six writ petitions are by the partners challenging orders passed by the Commissioner by which a request for waiving of interest under Section 273A, was turned down.

2. The background facts leading to the impugned orders are the following: The firms and their partners had been originally assessed to income tax. Final orders of assessment had been passed in respect of the period 1979-1980 to 1983-1984 It is conceded that the main income of the partners is the share income from the firms.

3. On 23-1-1985 there was a search in the premises of the firms and the residential premises of the partners at Trichur. Books of accounts and valuable jewellery had been removed by the officials from the custody of the partners.

4. Soon thereafter, the firms filed a petition Ext. P1 dated 4-2-1985 under Section 273 A of the Act. Similar petitions have been filed by the partners also. The Income Tax Officer passed orders on 3-3-1987. The contention of the assessees in relation to the waiver of penalty and interest was not accepted. Representations were filed before the Commissioner on 30-11-1987. The I.A.C had stated his views by reports dated 22-5-1987. The order Ext. P4 and those which correspond to it in respect of other periods and firms were passed by the Commissioner.

5. According to the Commissioner, Explanation 2 of Section 273A(2) has got only limited application. It was confined to a resultant situation coming under Section 271(1)(b) and not in relation to the other limbs of the Section. The Commissioner had already granted the petitioner benefits which were admissible. He had as a matter of fact, waived penalty under Section 271(1)(b). When Section 271(1)(b) with the Explanation is not otherwise attracted, there would be a distinct liability which has to be met by the petitioner. It is the correctness of the view that comes for consideration by this Court.

6. Counsel for the petitioners submitted that no penalty could be levied, when the petitioner had filed, within a week of the search, the revised returns. Those returns were made voluntarily and in good faith. That being so, penal provisions are not attracted, according to counsel.

7. Section 273A may be conveniently quoted in this context:

“273 A. Power to reduce or waive penalty, etc., in certain cases (1) Notwithstanding anything contained in this Act, the Commissioner may, in his discretion, whether on his own motion or otherwise:—

(i) reduce or waive the amount of penalty imposed or imposable on a person under clause (i) of sub-section (I) of Section 271 for failure without reasonable cause, to furnish the return of total income which he was required to furnish under sub-section (I) of Section 139; or

(ii) reduce or waive the amount of penalty imposed or imposable on a person under clause (iii) of sub-section (1) of Section 271; or

(iii) reduce or waive the amount of interest paid or payable under sub-section (8) of section 139 or section 215 or section 217 or the penalty imposed or imposable under section 273 if he is satisfied that such person—

(a) in the cases referred to in clause (i) has, prior to the issue of a notice to him under sub-section (2) of Section 139, voluntarily and in good faith made full and true disclosure of his income;

(b) in the case referred to in clauses (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 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 satifactory 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): For the purposes of this sub-section, a person shall be deemed to have made full and true disclosure of his income or of the particulars relating thereto in any case where the, excess of income, assessed over the income returned is of such a nature as not to attract the provisions of clause (c) of sub-section (1) of Section 271.

(Explanation 2: Where any books of account, other documents, money, bullion, jewellery or other valuable article or thing belonging to a person are seized under section 132 and within fifteen days of such seizure, the person makes a full and true disclosure of his income to the Commissioner, such person shall, for the purposes of clause (b) of this sub-section, be deemed to have made, 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, a disclosure of such particulars.”

8. It may be noted that as regards Section 271(1)(b), the Statute created a fiction. That fiction is, however, circumscribed; in relation to space and time. The Commissioner has found that the two conditions which the petitioner failed to satisfy were: (1) That the returns were not made voluntarily and (2) that they were not filed in good faith. If, on any one of these, the finding is adverse to the petitioner, the conclusion of the Commissioner could get confirmed; otherwise, not. The matter may now be considered in greater elaboration.

9. The term ‘voluntarily’, is a familiar one to the lawyers. It has got a specific definition under the Indian Penal Code, Section 39. The place where a person voluntarily resides is very important while considering the Court in which suits of the nature mentioned in Section 20 C.P.C are to be instituted While the definition of the Penal Code may not be apposite, in considering the scope and amplitude of that term in Section 273A, the history of the judicial decisions forming the background of Section 20 C.P.C may offer abundance of guidance. An influence of external element may change the content and complexion of what would have been otherwise a voluntary act. Such external affectation can arise by way of an element of compulsion or by an impact of inducement. A mere eagerness to avoid an inconvenience, may not, by itself, be sufficient to affect the voluntary, character of an act or transaction. The border line can at times be thin, so thin, even to strain trained eyes. The London and North Western Railway company v. Lindsay, 3 Macq. 99 was an illustrative case. Blackburn, Lord Justice commented on that term in Schibsby v. Westenholz, 40 Law J. Rep Q.B 73. A sentence by way of general observation occurring in that judgment later lead to considerable contentions on the scope of its construction. Absent pressure or duress, an act can be voluntary. The other fact is illuminated by the observation of Bowen, L.J in Vionet v. Barrett, 1885 (55) L.J Q.B Page in 38 at 42. The distilled principle construing the concept of compulsion understanding the term ‘voluntarily, is given in the summing up by Bowen L.J reading’.

“……the result is that a man cannot be said to be compelled to appear because if he does not do so he may be inconvenienced in the long run on account of his being a trader in the country, in which the process has been issued, so that he will from time to time have property in that country, for in such a case the appearance is made as a matter of convenience and not under what the law considers compulsion.”

10. Two decisions of the Allahabad High Court are directly on the point: Jakhodia Brothers v. C.I.T, 115 ITR 61 and Hakam Singh v. C.I.T 124 I.T.R 228. In the former, the Income Tax Officer had started investigation and had called for details concerning many matters in the course of the assessment proceedings of an year. Then came the revised returns of the assessee in respect of some previous years. It was observed that the “returns were filed after the assessee felt that the game was up because the investigation initiated by the I.T.O exposed him to a situation that he had assessable income in respect of other years and that it could not be said that the filing of the return was voluntary”. The filing of the return accordingly was held to be not voluntary. The decision in 115 I.T.R 61 was approvingly referred to in the later decision 124 ITR 228. In the latter case an association of persons invoked Section 273A for waiver or reduction of the imposable penally. The Association of persons had filed a revised return, about 11 months after a search conducted by the Income Tax Department and the seizure of certain books during the course of such search, in the business premises of the two firms in which one of the members of the Associations of persons was a partner. The Commissioner took the view that the returns were not voluntary. That was confirmed by the High Court. An inference was drawn from the circumstances that the revised returns were the result of self-prompting for escaping the consequences of an earlier default.

11. Counsel for the petitioners placed before me decisions in which, in the peculiar factual situations, obtaining therein, the filing of the return was held to be voluntary: S. Annaiah v. C.I.T, 95 ITR 435, Shankara Apaya Swami v. W.T.O, 103 ITR 649, B Anjanappa v. C.W.T, 124 I.T.R 433. Madhuknr Manilal Modi v. C.W.T 113 ITR 433, Hira Singh v. C.W.T 134 ITR 43 and R.P Ramaswamy Chettiar v. C.W.T, 144 I.T.R 87. It is unnecessary to plunge into an exhaustive enumeration of the factual details of these decisions. Some are cases where there was only some delay in filing the return, which delay could not be satisfactorily explained; some were cases where the return was filed at the instance of, but not due to any inducement or compulsion from the Income Tax Officer.

12. Counsel for the petitioner submitted that when a full disclosure is made in the revised return, the Commissioner is well within a compulsive situation to effect a waiver or reduction of imposable penalty. That extreme contention would not bear scrutiny of Section. The contention would render redundant the word ‘voluntarily’. That is not permissible.

13. It was complained that there was no adequate reference or detailed discussion of all relevant facts and circumstances before the Commissioner came to an adverse conclusion. May be, a more detailed discussion would have given greater satisfaction to all concerned. It cannot, however, be said that any of the salient and significant circumstances had been missed or eschewed in the impugned order.

14. It was contended that the over all conduct of the assessee, and the speed with which he filed the revised return after the search, would insulate him in relation to the penal consequences of Section 273A(1)(a) and (b). Reference was made in that connection to Explanation (2). The explanation, would really give a contrary indication. That explanation creates a statutory fiction, limited in its scope and effect. Its operation is in the restricted field. It is inoperative and powerless in other areas, even when they are as adjacent as in Section 273 A(1)(a) and (b). Had it not been for such a beneficient fiction, the petitioners would have been out of bounds, even as regards the facility they were favoured with in relation to waiver of penalty under Section 273(1)(b).

15. Counsel attempted to project yet another contention based on Section 273A(4). Such a contention was not raised either in writing nor urged in the course of the arguments presented by the tax practitioner. It is impermissible for the petitioner to urge, and for the Court to consider, such a contention in such circumstances. The conclusion reached above, makes it unnecessary to consider a further and additional ground mentioned in the orders challenged in some of the original petitions, namely, that the present assessee himself did not file the required petition under Explanation 2 of Section 273(A)(2).

16. The discomfiture of the petitioners, is understandable. That, however, is the fate of adventurers, in business, who rashly brush aside the adage: “Honesty is the best policy.” All the writ petitions fail. They are accordingly dismissed with costs.