Shri Velgi G. Shah v. Commissioner Of Income Tax – 18 & Others

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.275 OF 2010 Shri Velgi G. ShahVersus ..Petitioner. Commissioner of Income Tax – 18 & Others..Respondents. Mr.Pramodkumar Parida with Mr.Anil Mishra i/by M/s.PKP Legal Solutions for the petitioner. Ms.Suchitra Kamble for the respondents. CORAM : Dr.D.Y. Chandrachud & J.P. Devadhar, JJ. DATE : 22[nd] March 2010. P.C. : 1.Rule, returnable forthwith by consent of the parties. The matter is taken up for hearing and final disposal with the consent of both the learned Counsel for the parties. 2.The challenge in these proceedings is to an order dated 14[th ] October 2008 passed by the Commissioner of Income Tax – 18, Mumbai under Section 220(2A) of the Income Tax Act, 1961. In Para 5 of the impugned order, the Commissioner of Income Tax has observed that the assessee had not paid the tax of Rs.1,76,376/-. The Commissioner of Income Tax was of the view that the conditions for waiver under Section 220(2A) have not been satisfied. At the hearing of the petition, it was contended on behalf of the assessee that this finding of the Commissioner of Income Tax is palpably erroneous. An affidavit in reply has been filed on behalf of the Revenue, in which it has been stated, in Para 8 that upon verification it has been found that the assessee had paid an amount of Rs.2,00,000/- as claimed. In view of the factual position as it emerges from the reply filed on behalf of the Revenue, it will be appropriate and proper for this Court to set aside the impugned order and to remit the proceedings for reconsideration. To facilitate the passing of a fresh order, the impugned order dated 14[th ]October 2008 is set aside. It is clarified that no opinion has been expressed by the Court on the merits of the rival contentions, which are kept open. The Commissioner of Income Tax shall, upon remand, pass an order after furnishing to the assessee an opportunity of being heard. 3.Rule is made absolute to the aforesaid extent. There shall be no order as to costs. (J.P. Devadhar, J.) (Dr.D.Y. Chandrachud, J.)