JUDGMENT - T.D. SUGLA, J.:---By this petition under Article 226 of the Constitution of India, the petitioner has challenged the validity of the order dated 26th December, 1985 passed by the Commissioner of Income-tax, Bombay City 11, Bombay under section 154 of the Income, tax Act, 1961. The petitioner is a medical doctor by profession. Her husband is also in medical profession. On 31st October, 1884 the income-tax department conducted search in their premises and, inter alia seized some cash and documents relating to immovable properties. Within 14 days thereof, i.e., on 14th November, 1984, the petitioner made an application to the Commissioner under section 273-A of the Act requesting him to accept her declaration of income for different years as a voluntary declaration made in good faith. She also requested the Commissioner to waive all impossible penalties and interest chargeable under various sections of the Act The Commissioner accepted the application vide order dated 26th November, 1986 observing that the petitioner had satisfied all conditions laid down in section 273-A. 2. The successor Commissioner, however, felt that the order passed by his predecessor under section 273-A suffered from an apparent mistake rectifiable under section 154 of the Act. After allowing the petitioner opportunity of being heard, he passed the impugned order dated 3rd February, 1986. The effect of the rectification order it that the petitioner became liable to interest under section 139(B) and under sections 215/ 217 and to penalties under section 271(1)(a) and section 273 of the Act. The successor Commissioner, it may be mentioned, referred to the note of his predecessor on the file in his impugned order which, according to him, indicated that the petitioner was held to be satisfying all the conditions for application of section 273-A on the basis of deeming provisions of Explanation 2 to that section but the assumption was wrong Explanation is 2 created a fiction in respect of conditions under section 273-A(1)(b) only and not in respect of conditions in section 273-A(1)(a) and section 273-A (1)(c). For waiver of penalties imposable under sections 271(1)(a) and 273 and interest chargeable under section 139(8) and section 215/217, he stated, other conditions, namely, (a) and (c), required to be satisfied. 3. Shri Mistry, the learned Counsel for the petitioner, raised a number of contentions. For waiver of penalties imposable under sections 271(1)(a) and 273 and interest chargeable under section 139(8) and section 215/217, he stated, other conditions, namely, (a) and (c), required to be satisfied. 3. Shri Mistry, the learned Counsel for the petitioner, raised a number of contentions. Relying on the provisions of section 273-A(5), he stated that the order passed by the Commissioner under section 273-A was final and could not be rectified and/or revised. The said order did not suffer from any mistake, for less a mistake apparent from the record. The noting of the predecessor Commissioner in the file referred to and relied upon by the successor Commissioner in the impugned order did not form part of record. Even not taking into account the provisions of law while passing the order originally could not constitute a mistake apparent from the record. In any event, when there could conceivably be two views possible about the conclusion arrived at by the predecessor Commissioner, the order could not be subject matter of rectification under section 154 as held by the Supreme Court in the case of (Volkart Brothers )1, 82. I.T.R. 50. Shri Jetly, the learned Counsel for the Department, on the other hand, contended that section 273-A(5) did not exclude application of section 154 in appropriate cases. Power under section 154 codifies what is otherwise an inherent power in a Court or a Tribunal to rectify mistakes apparent from the record. On merits, he stated that the predecessor Commissioner had held that all the conditions laid down in section 273-A were satisfied in view of the Explanation 2. But that assumption was wrong and therefore, the successor Commissioner was fully justified in rectifying the order under section 154. 4. The first question that requires consideration in this case is whether section 273-A(5) excludes the power of the Commissioner under section 154 to rectify an order passed by his predecessor under section 273-A. In order to appreciate rival contentions, it is desirable to refer to the provisions of sub-section (5) of section 273-A which read thus : "273-A(5) Every order made under this section shall be final end shall not be called into question by any Court or any other authority." It is evident that the legislature in its wisdom has not stopped at making the order passed under section, 273-A merely final. It has also provided that such an order shall not be called into question by any Court or any other authority. Admittedly order under section 273-A can be passed only by the Chief Commissioner or Commissioner. The Commissioner is admittedly not a Court. Any other authority will ordinarily mean any authority other than the authority which passed the order. Therefore, the second limb of the sub-section will not apply to the Commissioner who passed the order. His power to rectify the order under Motion 154 will depend upon the construction of the first limb of the sub section, namely, any order passed under section 273-A shall be final. Having regard to the fact that Commissioner is empowered to rectify his own order under section 154, it is difficult to hold that if a glaring and/or obvious mistake of fact or law has crept in the order passed by him under section 273-A, the order should continue to suffer from that mistake. The effect of rectification is that after the rectification, there do not exist two orders, one without rectification and the other after the rectification or the rectifying order. There remains only one order, i.e. the rectified order, as if that was the order passed originally itself. Coming to the provisions of section 260-UN and section 269-UJ referred to and relied upon by Shri Mistry, it is seen that section 269-UN is couched in entirely a different language. As against the provisions referred hereinabove, what is barred under section 269-UN is--- "save as otherwise provided in this Chapter, any order made under sub-section (1) of section 269-UD or any order made under sub-section (2) of section 269-UP shall be final and conclusive and shall not be called in question in any proceeding under this Act or under any other law for the time being in force". The expression used in section 269-UN being materially different, it became necessary to provide for power of rectification in that chapter, i.e. under section 269-UJ itself. There was no such necessity for a specific provision in relation to motion 273-A. 5. Shri Jetly for the Department had contended that this petition required to be dismissed on the logic of the petitioner's own submissions. But this in not so. There was no such necessity for a specific provision in relation to motion 273-A. 5. Shri Jetly for the Department had contended that this petition required to be dismissed on the logic of the petitioner's own submissions. But this in not so. The petitioner herein is challenging the order under section 154 rectifying the order under section 273-A and not the order under section 273-A. For the present it may be assumed that an order under section 273-A cannot be challenged even before this Court though it cannot be so as the writ jurisdiction of the High Court can be, if at all, abridged by a constitutional amendment only and not by merely providing for it in the statute. In any event, so far as this Court's jurisdiction against an order passed by the Commissioner under section 164 is concerned, even that question does not arise. Accordingly, it Is held that the Commissioner had power to rectify the order under section 154 and that the petitioner was also entitled to challenge the order of the Commissioner passed under section 164 particularly as the order of the Commissioner under that section in respect of order under section 273-A is not appealable and is also not stated to be final. 6. Next question is the main question, namely, whether the order passed by the predecessor Commissioner under section 273-A suffered from a mistake apparent from the record. Assuming for the present that the predecessor Commissioner's note in the file is correctly reproduced by the successor Commissioner in the impugned order, the question is whether the Commissioner's conclusion that the petitioner satisfied all the condition laid down in section 273-A was merely on the basis of applicability of Explanation 2 thereof. Here again the note quoted earlier speaks for itself. In my Judgment, the submission made on behalf of the Department is not tenable in law. No doubt the successor Commissioner has referred to and relied upon the note in the file to say that the predecessor Commissioner had come to the conclusion on the basis of Explanation 2. Here again the note quoted earlier speaks for itself. In my Judgment, the submission made on behalf of the Department is not tenable in law. No doubt the successor Commissioner has referred to and relied upon the note in the file to say that the predecessor Commissioner had come to the conclusion on the basis of Explanation 2. Apart from the fact that the conclusion is that the petitioner was satisfying all the condition laid down in the section, it appears to me that the note refers to two reasons, viz., (i) disclosures filed have been found to be full and true by the I.T.O/I.A.C., and (ii) in the light of the Explanation 2 to section 273-A the disclosure is to be deemed to be voluntary and made prior to the detection of concealment of income in good faith. It is pertinent to mention that the Commissioner was considering the question of waiving penalties imposable under sections 271(1)(a), 273 and 271(1)(c) and interest chargeable under sections 139(8) and 215/217. So far as penalty impossible under section 271(l)(c) is concerned, requirement in section 273-A was that the full and true disclosure must be made before the detection of concealment of income voluntarily and in good faith. The second reason in the note is referable to penalty under section 271(1)(e) for concealment of income. To say the least, it is possible to read the first part of the note as referring to the provisions of section 273-A in entirety and the second part of the note, i.e. Explanation 2 as relating to the conditions required to be satisfied for waiver of penalty under section 271(1)(e) for concealment of income, Moreover, when a similar question came up before the Supreme Court in the case of (S.A.L. Narayan Row and another v. Ishwarlal Bhagwandas and another)2, 57 I.T.R, 149, it was held that if an authority had a discretion and if the circumstances prevailed in which the discretion could have been exercised, it was immaterial whether the discretion was as a matter of fact not exercised. It should be presumed to have been exercised. Accordingly, I am of the view that what requires to be considered here is not whether the so called reason given by the Commissioner for holding that the conditions laid down in section 273-A were satisfied is correct. It should be presumed to have been exercised. Accordingly, I am of the view that what requires to be considered here is not whether the so called reason given by the Commissioner for holding that the conditions laid down in section 273-A were satisfied is correct. The pertinent question is whether the conditions laid down in section 273-A are or could be satisfied. Since these are rectification proceeding's, the pertinent question will be whether on the basis of facts on record the Commissioner could have conceivably taken the view that conditions laid down in section 273-A were satisfied. In case there was scope for two conceivable views, the benefit would go to the petitioner and the Commissioner will not be justified to exercise his power of rectification under section 154. There being no dispute about the satisfaction of condition (b), the facts require examination from the point of view of conditions (a) and (c) only. 7. To decide whether the conditions laid down in section 273-A (for the purpose of this petition conditions laid down in Clauses (a) and (c) of section 273-A(1) are satisfied, it is necessary to refer to certain decisions cited before the Court, Allahabad High Court in the case of (Hakam Singh and others v. Commissioner of Income Tax, Meerut)3, 124 I.T.R. 228, of course held that the filling of returns was not voluntary since the returns were filed long after the search was carried out and the books of the petitioners were seized and were prompted by a sense of fear. The Court was examining the purpose end scope of the word "voluntary" used in section 273-A. This is undoubtedly a decision against the petitioner. On the other hand, Karnataka High Court in the case of (B. Anjanappa v. Commissioner of Wealth-tax, Karnataka and another)4, 124 I.T.R. 433, held that the dates of filing of the returns were not very material. If the assessee had made full disclosure of his net wealth in the returns filed, the conditions mentioned in clause (a) would stand satisfied. It is pertinent to mention that the Karnataka High Court took same view in (Shankara Apaya Swami v. Wealth tax Officer, Belgaum and another)5, 103 I.T.R. 649. (Commissioner of Wealth tax Mysore v. C.S. Manvi and others)6, 114 I.T.R. 417 and (Smt. Shantha Devi v. Wealth-tax Officer, Bangalore and another)7, 121 I.T.R. 703. It is pertinent to mention that the Karnataka High Court took same view in (Shankara Apaya Swami v. Wealth tax Officer, Belgaum and another)5, 103 I.T.R. 649. (Commissioner of Wealth tax Mysore v. C.S. Manvi and others)6, 114 I.T.R. 417 and (Smt. Shantha Devi v. Wealth-tax Officer, Bangalore and another)7, 121 I.T.R. 703. For the sake of brevity reference to those cases is not considered necessary. A similar question came up before the Punjab and Haryana High Court in the case of (Hira Singh v. Commissioner of Wealth tax, Patiala and another)8, 134 I.T.R. 438 where again it was held that the words "voluntary and in good faith" occuring in section 18-B(1)(a) of the wealth tax Act 1957 (which is identical to the provisions involved herein) qualified the words "made full and true disclosure of the net wealth". Merely because the wealth-tax officer had asked the wealth-tax assessee to file the returns, it could not be said that the latter was not entitled to the benefit of section 18-B. There are of course many other decisions. But it is not necessary to refer to each one of them. Evidently there is conflict of views between the High Courts as to the scope of conditions in section 273-A (1)(a) and (1)(c). The conditions read thus: "(a) In the case 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." "(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 has expired, prior to the issue of 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." Even on the plain reading of the conditions, it is clear that the common factor in the two conditions is full and true disclosure of income voluntarily and in good faith. While condition (a) requires that such a disclosure should have been before the issue of notice under section 139(2), condition (c) requires that the same should have been not only before the issue of notice under section 139(2) but also before the issue of notice under section 148 and also before the expiry of the period during which 139(2) notice could be issued. There is then a further "requirement in condition (c) regarding the payment of taxes. 8. In the above view of the matter, the least that can be said is that the predecessor Commissioner's finding that the conditions laid down under section 273-A were satisfied is supportable and cannot be said to suffer from a mistake of law, far less a mistake apparent from the record As laid down by the Supreme Court in 82 I.T.R 50 (supra) and this Court in (Commissioner of income-tax v. K Subnani Construction Co.)9, 177 I.T.R. 219, a mistake about which there could conceivably be two opinions cannot be subject matter of rectification under section 154. The impugned order, thus, requires to be and is hereby quashed. 9. In the result, the petition succeeds. The rule is made absolute in terms of prayer (a), No order as to costs. Rule made absolute. ----