Op/21619/1999 Of M/S.geejai Constructions v. C.n.ramachandran Nair Judge

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR WEDNESDAY, THE 28TH NOVEMBER 2007 / 7TH AGRAHAYANA 1929 OP.No. 21619 of 1999(W) ----------------------- PETITIONER: ------------ M/S.GEEJAI CONSTRUCTIONS,M.D.C.CENTRE, K.K.ROAD,KOTTAYAM, REP. BY ITS MANAGING PARTNER,SHRI.GEORGE JOSEPH KONDODY. BY ADV. SRI.C.KOCHUNNY NAIR SRI.DALE P.KURIEN RESPONDENTS: ------------- 1.THE ASSISTANT COMMISSIONER OF INCOME-TAX,CIRCLE-I, KOTTAYAM.CIRCLE-I, KOTTAYAM. 2.THE COMMISSIONER OF INCOME TAX,TRIVANDRUM.TRIVANDRUM. 3.THE CHIEF COMMISSIONER OF INCOME TAX,ERNAKULAM.ERNAKULAM. 4.THE CENTRAL BOARD OF DIRECT TAXES,REP. BY ITS SECRETARY, NEW DELHI.REP. BY ITS SECRETARY, NEW DELHI. BY ADV. SRI.P.K.R.MENON(SR.),SC FOR IT ADV. SRI.GEORGE K. GEORGE, SC THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28/11/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NOS.35644&38578/1999 IN OP NO.21619/1999 DISMISSED: 28.11.2007SD/-(C.N.RAMACHANDRAN NAIR, JUDGE.) APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF ASSESSMENT ORDER DT.22.12.1988 FOR THE YEAR 1983-84. P2: .DO.DT.31.12.1987 .DO.1984-85.P3: .DO.1985-86.P4: .DO.DT.2.9.19881986-87. P5: TRUE COPY OF APPLICATION FOR WAIVER OF INTEREST DT.26.4.1989 FILED BYPETITIONER BEFORE THE COMMISSIONER OF INCOME TAX, TRIVANDRUM. P6: TRUE COPY OF PETITION FILED U/S.273A FOR WAIVER OF INTEREST AND PENALTY BYPETITIONER DT.10.10.94. P7: .DO.DT.30.11.94. P8: TRUE COPY OF LETTER DT.8.1.96 SENT BY PETITIONER TO R2. P9: .DO.DT.11.7.1994 .DO. P10: .TRUE COPY OF TELEGRAM DT.12.1.95 SENT BY PETITIONER TO R2. P11: TRUE COPY OF ORDER PASSED BY COMMISSIONER OF INCOME TAX, TRIVANDRUMU/S.273A OF THE IT ACT, DT.31.5.99. P12: TRUE COPY OF NOTICE DT.18.8.99 ISSUED BY INCOME TAX OFFICER, WARD I,KOTTAYAM. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR, J. .................................................................... .................................................................... Dated this the 28th day of November, 2007. JUDGMENT The petitioner is challenging Ext.P11 order whereunder theCommissioner of Income Tax rejected petitioner's application filed underSection 273A of the Income Tax Act for waiver of interest under Section139(8) and Section 217 and penalty levied under Section 271(1)(a) andSection 273(1)(b) of the Act. 2. I heard counsel appearing for the petitioner and Standing Counselappearing for the respondents. I have also gone through Ext.P11 order.Section 273A provides in sub-section (1) that waiver of interest and penaltycan be granted only if the assessee has co-operated in the enquiry and madefull and true disclosure of the income. Another important condition forwaiver is payment of interest or penalty as the case may be, or making ofsatisfactory arrangement for payment. It is found in Ext.P11 that petitionerhad not made any payment of interest or penalty or made any arrangementfor payment of the said sum. Even though counsel submitted that petitionerhas made arrangement for payment, there is nothing to indicate as to whatwas the arrangement made for payment. The demand is raised for the 2. I heard counsel appearing for the petitioner and Standing Counselappearing for the respondents. I have also gone through Ext.P11 order.Section 273A provides in sub-section (1) that waiver of interest and penaltycan be granted only if the assessee has co-operated in the enquiry and madefull and true disclosure of the income. Another important condition forwaiver is payment of interest or penalty as the case may be, or making ofsatisfactory arrangement for payment. It is found in Ext.P11 that petitionerhad not made any payment of interest or penalty or made any arrangementfor payment of the said sum. Even though counsel submitted that petitionerhas made arrangement for payment, there is nothing to indicate as to whatwas the arrangement made for payment. The demand is raised for the assessment years 1983-84 to 1986-87 and the impugned order was passed12 years after the last year for which demand was raised. The petitionercould have made the application after making payment or after makingarrangement for payment or could have made the payment before disposalof the application. However, petitioner has no case that petitioner hascomplied with any of these conditions. Standing Counsel submitted incourt that besides not making payment and not making any arrangement forpayment, petitioner has even made claim for Kar Vivad Samadhan Schemefor payment which, though granted to the petitioner, was not availed by thepetitioner. The petitioner himself produced proceedings under the KarVivad Samadhan Scheme vide Ext.P12 and it is settled position throughvarious decisions of several courts including that of this court inP.A.MOHAMMED ABDUL KHADER & CO. V. COMMISSIONER OFINCOME TAX AND ANOTHER (1978) 112 ITR 552 that the assessee canclaim waiver of interest only if conditions are satisfied. Since petitioneradmittedly did not satisfy any of the conditions and the conditions are notsatisfied even when the O.P. was filed, there is no justification to interferewith the impugned order. The O.P. is devoid of any merit and isdismissed. C.N.RAMACHANDRAN NAIRJudge