In W.p.(C) v. Commissioner Of Income Tax (223 Itr 209

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC TUESDAY, THE 16TH DAY OF OCTOBER 2012/24TH ASWINA 1934 WP(C).No. 37706 of 2004 (L) ----------------------------------------- PETITIONER(S): ------------------------ M/S.A.R.SIVADASAN & CO., EDATHIRUTHY PO THRISSUR REP. BY ITS PARTNER K.K.GOPINATHAN. BY ADVS.SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN RESPONDENT(S): ---------------------- ---- 1. THE CHIEF COMMISSIONER, DEPARTMENT OF DIRECTOR TAXES, I.S.PRESS ROAD ERNAKULAM. 2. THE TAX RECOVERY OFFICER, RANGE I, MUNICIPAL BUILDINGS, WEST FORT, THRISSUR -4. MUNICIPAL BUILDINGS, WEST FORT, THRISSUR -4. BY ADV. SRI.P.K.R.MENON,SR.COUNSEL,GOI(TAXES) BY ADV. SRI.GEORGE K. GEORGE, SC FOR IT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-10-2012, ALONG WITH WPC. 18152/2005, WPC. 35364/2005, & WPC. 35413/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.37706/2004 APPENDIX PETITIONER'S EXHIBITS:- P1:- COPY OF THE ORDER DT. 18.12.1992 DIRECTING REGISTRATION BY THEAPPELLATE AUTHORITY. P2:- COPY OF THE ORDER DTD. 10.7.1997. P3:- COPY OF THE ORDER DTD. 20.11.2000 OF THE I.T.O. P4:- COPY OF THE PETITION FOR WAIVER DTD. 3.12.2001. P5:- COPY OF THE JUDGMENT DTD. 6.2.2004 WPC. 4172/2004. P6:- COPY OF THE ORDER DTD. 22.6.2004 OF THE IST RESPONDENT. RESPONDENT'S EXHIBITS:- NIL //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC,J ---------------------------------- W.P.(C)No. 37706 of 2004, 18152, 35413 & 35364 of 2005 ------------------------------------- Dated this the 16[th] day of October, 2012 JUDGMENT Issues raised in these writ petitions are common.Therefore, these cases were heard together. 2. In W.P.(c) No.37706/2004, the petitioner is a partnership firm. For the assessment year 1990-1991,they filed return and claimed status of a registered firm.That was declined by the Assessing Officer. However, inan appeal filed, the claim of the petitioner was allowed.The Tribunal was also confirmed the appellate order.However, in Tax Revision Case filed by the Revenue, aDivision Bench of this Court reversed the appellate orders,following the Full Bench judgment of this Court in K.S.Ramakrishnan,P.K.Narayanan & Company v.Commissioner of Income Tax (223 ITR 209). 3. This resulted in an additional demand of tax andinterest by Ext.P3. Petitioner thereupon paid the tax due W.P.(C).No. 37706 or 2004and connected cases and thereupon, submitted Ext.P4 application claimingwaiver of interest pursuant to the notification dated23.05.1996 issued by the Government of India underSection 119(2)(a) of the Income Tax Act. That applicationwas rejected by Ext.P6 order. It is challenging Ext.P6, thewrit petition is filed. 4. Insofar as writ petition No.18152/2005 isconcerned, that pertains to the assessment year 1989-1990. Facts are similar and Ext.P4 is the application forwaiver, which was rejected by Ext.P7 order and thereasons assigned are also similar. 5. Insofar as W.P.(c) No.35413/2005 is concerned, facts are similar except that the assessment yearsinvolved are 1996-1997 and 1997-1998. Exts.P3 and P4are the applications for waiver, which were also similarlyrejected by Ext.P6 order. 6. Insofar as W.P.(C) No.35364/2005 is concerned, the relevant assessment year is 1998-1999. Except that W.P.(C).No. 37706 or 2004and connected cases Ext.P2 is the petition for waiver, which was rejected byExt.P4 order, facts are similar in all these cases. Whenthe writ petition was taken up, counsel for the petitionercontended that what isclaimed by the petitioners in thesecases, is the benefit of clause (d) of the notification dated23.05.1996 as clarified by order dated 30.01.1997, whichreads as under: 5. Insofar as W.P.(c) No.35413/2005 is concerned, facts are similar except that the assessment yearsinvolved are 1996-1997 and 1997-1998. Exts.P3 and P4are the applications for waiver, which were also similarlyrejected by Ext.P6 order. 6. Insofar as W.P.(C) No.35364/2005 is concerned, the relevant assessment year is 1998-1999. Except that W.P.(C).No. 37706 or 2004and connected cases Ext.P2 is the petition for waiver, which was rejected byExt.P4 order, facts are similar in all these cases. Whenthe writ petition was taken up, counsel for the petitionercontended that what isclaimed by the petitioners in thesecases, is the benefit of clause (d) of the notification dated23.05.1996 as clarified by order dated 30.01.1997, whichreads as under: “(d) Where any income which was notchargeable to income-tax on the basis of any orderpassed in the case of an assessee by the HighCourt within whose jurisdiction he is assessable toincome-tax, and as a result, he did not payincome-tax in relation to such income in anyprevious year and subsequently, in consequence ofany retrospective amendment of law or, as thecase may be, the decision of the Supreme Court inhis own case, which event has taken place after theend of any such previous year, in any assessmentor reassessment proceedings the advance tax paidby the assessee during the financial yearimmediately preceding the relevant assessmentyear is found to be less than the amount ofadvance tax payable on his current income, the : 4 : assessee is chargeable to interest under Section234B or section 234C and the Chief Commissioneror Director-General is satisfied that this is a fit casefor reduction or waiver of such interest.” 7. I heard the learned counsel for the petitioners and also the learned standing counsel appearing for theRevenue. 8. Clause (d) which is relied on, is applicable in a case where tax has been paid relying on the judgment ofthe High Court or Supreme Court and that subsequently,the liability got increased on account of reversal of thejudgment relied on by the assessee. Therefore, thequestion whether the case for the petitioners is coveredby Clause (d) of the notification will have to beascertained with reference to the applications filed bythem seeking waiver. 9. As already noticed, in W.P.(c) Nos.37706/2004and 18152/2005, Ext.P4 are the applications. Insofar asW.P.(c) No.35413/2005 and 35364 of 2005, Exts.P3, P4 W.P.(C).No. 37706 or 2004and connected cases : 5 : and P2 are the applications. Having closely perusedthese applications, I do not find any ground raised by thepetitioners, which can be traced to Clause(d) of thenotification dated 23.05.1996. Fact that none of thegrounds traceable Clause (d) referred to above, has beenraised by the petitioners is also evident from the orderspassed by the respondents rejecting the applications.Further, in these orders also, no reference is made to anycontention relying on the notification is neither noticednor dealt with. Therefore, before the respondents, thepetitioners did not establish a case covered by Clause (d)of the notification to contend that a claim under Clause(d)has been wrongly rejected by them. If that be so, Icannot find fault with impugned orders nor can this Courtinterfere with the same. Writ Petitions are dismissed. Sd/- ANTONY DOMINIC, JUDGE