M/S.new Era Urban Amenities Ltd.,Flat v. The Commissioner Of Income Tax, Chennai - Iii

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM THE HON'BLE MR.JUSTICE T.S.SIVAGNANAM Writ Petition No. 18147 of 2003 andW.P.M.P.No.22636 of 2003 M/s.New Era Urban Amenities Ltd.,Flat No.7, Baba Foundations,15, Balakrishna Road,Mylapore, Chennai - 600 004. ... Petitioner Vs. 1.The Commissioner of Income Tax, Chennai - III, 121, Mahatma Gandhi Road, Chennai - 600 034. 2.The Assistant Commissioner of Income Tax, Central Circle III (4) Chennai - 300 034. ... Respondents Writ Petition, filed under Article 226 of the Constitutionof India, for issuance of Writ of Certiorari to call forrecords in C.No.3032 (8)/III/01-02, dated 15th February, 2002 ofthe 1st respondent and quash the same. For Petitioner : Mr.M.P.Senthil Kumar For Respondents : Mr.J.Narayanaswamy Senior Standing Counsel Heard Mr.M.P.Senthil Kumar, the learned counselappearing for the petitioner, and Mr.J.Narayanaswamy, learnedSenior Standing Counsel for the respondents. 2. This Writ Petition is filed by the petitioner,challenging the order passed by the first respondent, dated15.02.2002, which is purported to be an order under Section 264of the Income Tax Act, 1961 (henceforth, referred to as 'theAct'). https://hcservices.ecourts.gov.in/hcservices/ 3.The assessment for the petitioner-Company in respect ofthe year 1995-1996 was completed under Section 144 of the Act,on 31.03.1998, determining the total income at Rs.20,11,092/-,and the tax payable at Rs.16,09,677/-. The demand notice wasissued under Section 156 of the Act, dated 25.05.1998. Sincethe tax was not paid, even as on the date of the passing theorder under Section 220(2) of the Act, the Assessing Officercharged interest under the said Section, at Rs.48,290/-. 4.The petitioner filed a Petition before the firstrespondent, under Section 264 as well as Section 220 (2A) ofthe Act, and the prayer sought for thereunder was to waive theinterest levied and/or sustained in full, in exercise of powersunder Section 220 (2A) of the Act, and to Stay the recovery ofthe interest during the pendency of this Writ Petition. Thefirst respondent, while rejecting the Petition by the impugnedorder, opined that only the correctness, legality or thepropriety of the order will come within the scope of power ofrevision under Section 264 of the Act, and the petitioner,having not challenged, either the chargeability of the interestunder Section 220 (2) of the Act, or the quantification ofinterest for the relevant assessment years, such relief cannotbe granted to the petitioner, and the Petition was held to benot maintainable, though there are certain other observations,touching upon the merits, essentially, the first respondent cameto the conclusion that the Petition U/s.264 of the Act, seekingfor waiver is not maintainable. 5.As pointed out earlier, in the preceding para, thepetitioner has not only filed a Petition under Section 264 ofthe Act, but, it is under Section 220(2A) of the Act as well.Therefore, the first respondent could have very well treated thePetition, as a Petition for waiver under Section 220(2A) of theAct, as the Commissioner has been empowered to deal with suchPetition by the Central Board. 6. In fact, the petitioner has set out in the grounds ofthis Writ Petition, as to how, they failed to fulfill theparameters, required to be complied with under Section 220(2A)of the Act. Therefore, the first respondent should haveconsidered the said Petition, by treating it as Petition underSection 220 (2A). 7.Therefore, considering the factual situation, it isclear that the petitioner sought for waiver under Section 220(2A) and it is not revision under Section 264 for revising theearlier order passed by the Assistant Commissioner or for thatmatter. Hence, this Court is of the view that the matterrequires to be re-considered by the first respondent, by treating the Petition as purely a Petition under Section 220(2A)of the Income Tax Act. 6. In fact, the petitioner has set out in the grounds ofthis Writ Petition, as to how, they failed to fulfill theparameters, required to be complied with under Section 220(2A)of the Act. Therefore, the first respondent should haveconsidered the said Petition, by treating it as Petition underSection 220 (2A). 7.Therefore, considering the factual situation, it isclear that the petitioner sought for waiver under Section 220(2A) and it is not revision under Section 264 for revising theearlier order passed by the Assistant Commissioner or for thatmatter. Hence, this Court is of the view that the matterrequires to be re-considered by the first respondent, by treating the Petition as purely a Petition under Section 220(2A)of the Income Tax Act. 8.Accordingly, the Writ Petition is allowed, the impugnedorder is set aside and the matter is remanded to the firstrespondent for fresh consideration, who shall consider thePetition filed by the petitioner, dated 23.01.1999, as purely aPetition under Section 220 (2A) of the Act and decided the same,in accordance with law. It is seen that, at the time, when theWrit Petition was entertained, order of interim stay was grantedon 06.10.2003, subject to the condition that the petitioner pays30% of the impugned demand towards interest under Section 220(2) of the Act. The learned counsel for the petitionersubmitted that the conditional order has been complied with. Ifthat be the case, then, the payment made by the petitioner shallabide by the fresh orders to be passed by the first respondent.No costs. Consequently, connected Miscellaneous Petition isclosed. Sd/- Assistant Registrar(CS IV) //True Copy// Sub Assistant Registrar nmm/sdTo 1.The Commissioner of Income Tax, Chennai - III, 121, Mahatma Gandhi Road, Chennai - 600 034.2.The Asst. Commissioner of Income Tax, Central Circle III (4) Chennai - 300 034. +1cc to Mr.Mallika Srinivasan, Advocate, S.R.No.50193Writ Petition No.18147 of 2003 CS IVCA(03/08/2017)