JUDGMENT A.P. Misra, J.
1. Heard learned counsel for the petitioner and also learned standing counsel for the Revenue.
2. The petitioner seeks quashing of the order dated March 31, 1994, passed by the Commissioner of Income-tax, Meerut, under Section 273A of the Income-tax Act, 1961, for waiver of penalty imposed under Sections 271(1)(a) and 273(2)(b) of the Act. The contention is that, on the facts and circumstances, the penalty should have been waived by the Income-tax Commissioner.
3. Before one is entitled to waiver of penalty under this section, he must satisfy the following :
(a) The assessee must, prior to the issuance of notice to him under Section 139(2) of the Act, voluntarily and in good faith have made full and true disclosure of his income ;
(b) he should co-operate in any enquiry relating to the assessment of his income ; and
(c) he has either paid or made satisfactory arrangements for the payment of tax in consequence of an order passed under the Income-tax Act in respect of the relevant assessment year.
4. The finding recorded by the Income-tax Commissioner is that the return has been filed by the petitioner voluntarily and further he has also made true disclosure. However, he further recorded on the facts and circumstances that the disclosure was not made in good faith. The finding is that "the assessee admittedly had income of Rs. 1,16,970 within the accounting year and when notice under Section 274 read with Section 271(1)(a) was issued, the assessee had not responded to the said notice. More than three opportunities were given but the assessee did not bother to comply with them. The assessee, as a matter of fact, did not realise his responsibility of filing of return in time. Even on the returned income of Rs. 1,16,970 the admitted tax was also not at all paid. Therefore, I find extremely difficult to accept the plea that the return was filed in good faith."
5. This finding is a finding of fact. On the next condition regarding cooperation by the assessee, the finding is that the assessee has not at all been co-operative. Even when the show-cause notice was issued and more than three opportunities were given to him, the assessee did not bother to reply to the notices. On one occasion, the accountant of the firm had refused to accept the notice at the given address, thereafter the notice was sent by registered post to the given address, which was also received back with the postal remarks that the resident of this address stated that no person as stated in the notice is at the given address. The Income-tax Commissioner further recorded that the fact is that the assessee's address is the same, as given in the petition, which was filed before the Income-tax Commissioner. The Commissioner further recorded that the assessee did not co-operate in the matter.
6. In view of the aforesaid findings, the question is whether the petitioner is still entitled to grant of waiver in terms of Section 273A(1)(a) of the Act. The argument of learned counsel for the petitioner is that the Commissioner of Income-tax acted illegally and arbitrarily in refusing to grant the relief under the aforesaid provisions of the Act.
7. The aforesaid argument of learned counsel for the petitioner is not tenable. The Commissioner of Income-tax did not find fulfilment of the conditions of Sections 271(1)(a) and 273(2)(b) for grant of waiver by holding, firstly, that the return was not filed in good faith and, secondly, that he did not co-operate in the proceedings. Both are essential conditions before consideration of either reducing or waiving the penalty imposed.
8. Next, it was urged that the Commissioner of Income-tax exercised quasi-judicial power and even in case some of the conditions were not fulfilled, he should have proportionately reduced the penalty. The argument is misconceived as even the authority, exercising quasi-judicial power has to decide in terms of the provisions under the Act, not contrary to the same. When the provisions contained a minimum requirement before considering either reduction or waiver of penalty and that having not been complied with only because he was exercising judicial power, the petitioner is not entitled to any proportionate reduction in penalty. The argument is misconceived and has no leg to stand.
9. In view of the aforesaid findings, we find no merit in the writ petition and it is accordingly dismissed.