Smt. Prakashkumari Vs. Commissioner of Income Tax - Court Judgment

Excerpt:
- section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - once the conditions required for exercise of discretion in any judicial or quasi-judicial proceedings are satisfied, exercise of discretion cannot be either arbitrary or capricious and has to be judicious and objective. when the power is given to a public, authority for being used for the benefit of a class of persons and the conditions precedent for the exercise are well-defined, there is a duty to exercise such power and on failure to perform that duty, courts are not only empowered but are duty-bound to interfere. cit [2004]270itr581(bom) further observed that section 273a of the act contemplates full and true disclosure made voluntarily and in good faith even though such a disclosure is made through belated returns. 5. the department failed to prove that the application (sic-return) was filed only after service of notice. 1983 to 1985 which they failed to discharge.anoop v. mohta, j.1. the present petition is against an order whereby respondent no. 1 refused to exercise jurisdiction under 273a of the it act, 1961 (for short 'act') for waiver of interest under sections 139(8) and 217 of the act for income-tax asst. yrs. 1983-84 to 1985-86.2. the petitioner being co-owner received rental income from the property during the relevant years. the petitioner voluntarily filed his (sic her) income-tax returns for the above years before receipt of any notice under section 139(2) or 148 of the act. the petitioner filed a petition on 4th may, 1988 under section 273a for waiver of interest charged and for waiver of penalties and restricted the same only for years 1983 to 1986. the petitioner had made full payment of taxes on the income as assessed but not paid interest as an application was filed for waiver of the interest. the respondent, however, by order dt. 24th may, 2001, rejected the petitioner's application.3. this court in writ petn. no. 311/1996, vasantbhai jethalal lathiwala v. cit reported at (2008) 219 ctr (bom) 564. elaborated the scheme and purpose of section 273a of the it act in para nos. 7, 9, 11 and 13 as under:7. the division bench of bombay high court in laxman v. cit : [1988]174itr465(bom) has explained the scheme and purpose of the section in following words:12. on behalf of the respondent, it was contended that the power under section 273a of the act is purely discretionary in character and, under the circumstances, no interference in writ jurisdiction is called for. we find it difficult to accept this contention. once the conditions required for exercise of discretion in any judicial or quasi-judicial proceedings are satisfied, exercise of discretion cannot be either arbitrary or capricious and has to be judicious and objective. when the power is given to a public, authority for being used for the benefit of a class of persons and the conditions precedent for the exercise are well-defined, there is a duty to exercise such power and on failure to perform that duty, courts are not only empowered but are duty-bound to interfere. in the instant case, refusal to exercise discretion is for no other reason than misconception of the scope of the power and hence a writ of mandamus can be issued directing the cit to entertain the application and to proceed to exercise the discretion within the limits specified by law.9. the bombay high court in anand b. apte, l/h of late smt. kamalaben b. apte v. cit : [2004]270itr581(bom) further observed that section 273a of the act contemplates full and true disclosure made voluntarily and in good faith even though such a disclosure is made through belated returns. in that case, the application of waiver under section 273(a) of the act cannot be rejected on the ground that there was no voluntary disclosure, and thereby such order of cit was quashed and set aside and remanded the matter to decide the application on merit.11. in sukhdev hargopal puri v. union of india and ors. : [2005]279itr591(bom) this court has considered the power of cit to grant waiver as a one time measure can grant relief with regard to any number of assessment years based upon the section 273a(3) of the act.13. ...it is necessary for the cit to take into consideration all the material available on the record sangram singh mehta and ors. v. ito and ors. .4. in the present case as the section itself provides that such an assessee can apply for waiver of interest and penalty and accordingly applied also. therefore, merely because the interest amount was not paid but complied with all other elements as required the rejection of application on that ground, in our view, is not correct.5. the department failed to prove that the application (sic-return) was filed only after service of notice. there is an affidavit to show that the petitioner never received any notice under section 139 or such other section. the return was filed voluntarily disclosing the full facts and material. the burden lies upon the department to show that the notices were duly served for the asst. yrs. 1983 to 1985 which they failed to discharge. in view of the affidavit of denial, detail material and evidence to support the case of service, which is missing in the present case. therefore, we are of the view that there were no notices served before the voluntary disclosure of the income by the petitioner.6. taking all these aspects into account, we are of the view that, the impugned order dt. 24th may, 2001, for the asst. yr. 1983 to 1986 as restricted, need to be quashed and set aside. the respondents to pass order after giving full opportunity of hearing and reconsider the application filed by thejietitioner in accordance with law. the matter is remanded accordingly.7. the petition is allowed to that extent only with no order as to costs.