JUDGMENT [ENTITY], J.
1. This is an application filed by the petitioner challenging the orders dated February 20, 1996, and July 30, 1996, passed by respondents Nos. 1 and 2 refusing to waive the penalty under [SECTION] of the [ACT] (hereinafter referred to as "the said Act"), for the assessment years 1984-85 and 1987-88 to 1990-91.
2. The facts of the case briefly are as follows :
3. One [ENTITY], died intestate on March 22, 1991, leaving behind the writ petitioner as one of his legal heirs. After the death of the said asses-see, the petitioner was able to find out that some of the investments made by the assessee in different years and the income derived from such investments had not been disclosed by him in his returns. The writ petitioner voluntarily filed the returns for the assessment years 1984-85 and 1987-88 to 1990-91 and further requested the Income-tax officer (hereinafter referred to as "the ITO") to reopen the assessments for the said assessments years under [SECTION] [SECTION] of the said Act.
4. The writ petitioner further informed the Income-tax Officer that the said deceased also failed to disclose some amounts for the assessment years 1983-84, 1985-86 and 1986-87 and filed the returns for the said assessment years and duly paid tax aggregating to a sum of Rs. 38,832 for the said assessment years.
5. Thereafter, the petitioner made an application before respondent No. 1 for the assessment year 1984-85, 1987-88 to 1990-91 and prayed for waiver of penalty leviable under [SECTION].
6. On February 20, 1996, the Commissioner of Income-tax disposed of the said application. The writ petitioner filed an application before the Commissioner of Income-tax on April 23, 1996, for rectification of the said order dated February 20, 1996, on the ground that all the conditions under [SECTION], were satisfied and the said matter was referred by the Commissioner before the Chief Commissioner of Income-tax. The Chief Commissioner specifically stated that no interference is required and accordingly on July 30, 1996, the Commissioner duly rejected the application for rectification.
7. Learned counsel appearing on behalf of the petitioner contended that under [SECTION] two separate powers have been given by the Legislature under [SECTION] and [SECTION]. He further contended that for the exercise of the powers under Sub-section (1), the requirement of obtaining previous approval of the Chief Commissioner is necessary when the disclosed income exceeds Rs. 5 lakhs and the requirement of previous approval is also necessary before passing of an order under [SECTION] where the amount of penalty exceeds Rs. 1 lakh. Therefore, according to him no permission and/or approval was required by the Commissioner to deal with the matter and accordingly he submitted that the Commissioner could not have sent the matter before the Chief Commissioner for his approval. Therefore, he contended that the act on the part of the said authorities is wholly and fully a misconstruction of the said sections and they did not apply their minds properly. He further contended that it is not necessary for the assessee to show under [SECTION] that there is genuine hardship in order to obtain waiver of the penalty under [SECTION] and he further contended that the conditions fulfilled by the writ petitioner to get such benefit. He further contended that the Commissioner has sent the matter before the Chief Commissioner for waiving penalty. Therefore, according to him, such reference has been made by the Commissioner to the Chief Commissioner after he satisfied himself that the petitioner is entitled to get such benefit. He relied upon the judgments reported in [PRECEDENT] ; [PRECEDENT] ; [PRECEDENT] and [PRECEDENT] and contended that the court has power to interfere with the order passed by an authority who is passing such order in any judicial or quasi-judicial proceedings. Accordingly, he submitted that the said order should be set aside and the authority should be directed to exercise its power in accordance with law and to waive such penalty.
8. Learned counsel appearing on behalf of the respondents contended that the order dated February 20, 1996, is a speaking order. On April 23, 1996, the writ petitioner made an application under [SECTION] of the said Act for rectification or reconsideration of the said order dated February 20, 1996. The said application under [SECTION] of the said Act has also been disposed of by the Commissioner of Income-tax by passing a speaking and/or reasoned order. According to him, the writ application is not maintainable since the order passed by the Commissioner is an appealable order under [SECTION] of the said Act. Without preferring any appeal, the petitioner filed an application under [SECTION] praying, inter alia, for waiver of penalty under [SECTION] of the said Act.
9. He further contended that the application under [SECTION] of the said Act was filed against the order dated February 20, 1996, which was rejected on July 30, 1996, by the Commissioner of Income-tax. The writ petitioner again filed such application under [SECTION]. In view of the fact that the application filed by the petitioner for waiving the interest it cannot be treated as the order passed by the authorities as incorrect. He further contended that the order under [SECTION] of the said Act has merged with the order passed under [SECTION] of the said Act. Therefore, the said order is also appealable. The writ petitioner without availing of such right cannot challenge the said order by way of this writ application. He further contended that the order is a speaking order and there is no reason to interfere with the same.
10. After hearing the parties and considering the facts and circumstances of this case, it appears that the petitioner has a right to prefer an appeal from the order passed by the authorities. The said order is also an appealable order which is not in dispute, in view of the said fact and furthermore, no grounds have been made out for the petitioner that the said authorities have passed such order without any jurisdiction. Accordingly, in my opinion, the petitioner has no right to file this writ application. The remedy of the petitioner is to prefer an appeal before the appropriate forum and not by way of this writ proceedings.
11. Accordingly, in my opinion, this application must fail and is hereby dismissed.