The court upheld the discretionary nature of Section 273A(4) of the Income-tax Act and emphasized the requirement for genuine hardship and cooperation from the assessee in exercising the discretion to reduce or waive the penalty.

K.C. Agrawal, J.

1. THIS petition under Article 226 of the Constitution has prayed for a number of reliefs. One of them is for setting aside the order of the Commissioner of Income-tax dated September 19, 1985, by which penalty was reduced or waived by 50% under Section 273A(4) of the Income-tax Act, 1961.

2. SECTION 273A(4) of the Income-tax Act confers discretion on the Commissioner to reduce or waive the amount of any penalty payable by the assessee under this Act, if he is satisfied that--

"(i) to do otherwise would cause genuine hardship to the assessee, having regard to the circumstances of the case; and

(ii) the assessee has co-operated in any enquiry relating to the assessment or any proceeding for the recovery of any amount due from him."

The Commissioner of Income-tax considered the relevant facts while dealing with the application under SECTION 273A(4) and on the satisfaction that the petitioner co-operated with the income-tax authorities in the course of assessment and payment of tax, reduced the penalty by 50 per cent. It could not be and was not disputed before us that SECTION 273A(4) is discretionary in nature. We could have interfered if the discretion had not been exercised in accordance with law. We could not be convinced that the total reduction or waiver was wrongly rejected on extraneous considerations and we are unable to quash the same.

Sri S.N. Verma, learned counsel for the petitioners, urged with particular reference to Section 273A(4) that the criminal complaint filed against petitioners Nos. 2 and 3 be quashed. We are unable to find any ground for doing so in the present proceedings. Counsel for the petitioners further submitted on the basis of Section 279(1A) of the Income-tax Act that no offence had been committed by petitioners Nos. 2 and 3. For examining the applicability of this provision and some others for which petitioners Nos. 2 and 3 are being prosecuted, facts would be require to be investigated. Petitioners Nos. 2 and 3 would have a right to point out to the Magistrate before whom the case is pending that they had not committed any offence for which they were being prosecuted.

3. THE writ petition has no substance. It is dismissed.