Sri.sajith Kumar v. Respondent(S

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN MONDAY, THE 23RD DAY OF JULY 2012/1ST SRAVANA 1934 WP(C).No. 28378 of 2004 (T) --------------------------- PETITIONER(S): ---------------- T.M.VARGHESE S/O. MATHEW, AGED 66, PROP.KINGS MARINE PRODUCTS, ULIAKOVIL KOLLAM RESIDING AT THEYILAMANNIL CANTONMENT NORTH KOLLAM. BY ADVS.SRI.K.R.SUDHAKARAN PILLAI SRI.SAJITH KUMAR V. RESPONDENT(S): -------------- 1. THE COMMISSIONER OF INCOME TAX, PUBLIC LIBRARY BUILDING, SASTRI ROAD, KOTTAYAM. 2. THE INCOME TAX OFFICER, WARD-1, ALLEPPEY BY ADV. SRI.JOSE JOSEPH ,SR.STANDING COUNSEL FOR I.T. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON23-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28378 of 2004 (T) APPENDIX PETITIONER'S EXHIBITS: EXT.P1:A TRUE COPY OF ORDER C.NO.308(C)/41/264 CTT/KTM DATED 05.05.2004 ISSUED BY THE 1ST RESPONDENT.05.05.2004 ISSUED BY THE 1ST RESPONDENT. EXT.P2:A TRUE COPY OF THE LETTER DATED 04.01.2001 SUBMITTED BYTHE PETITIONER BEFORE THE 2ND RESPONDENT.THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P3:THE TRUE COPY OF THE LETTER DATED 30.09.2002 ISSUED BY THE 2ND RESPONDENT.THE 2ND RESPONDENT. EXT.P4:A TRUE COPY OF ORDER C.NO.332/TECH/KVSS/57/98-99 DATED 12.2.1999 ISSUED BY THE 1ST RESPONDENT.DATED 12.2.1999 ISSUED BY THE 1ST RESPONDENT. EXT.P5:A TRUE COPY OF CERTIFICATE C.NO.332/TECH/KVSS/57/98-99DATED 19.03.1999 ISSUED BY THE 1ST RESPONDENT.DATED 19.03.1999 ISSUED BY THE 1ST RESPONDENT. EXT.P6:A TRUE COPY OF THE APPELLATE ORDER NO.80/ALPY/CIT-IV/00-2004 DATED 05.01.2004 ISSUED BY THE COMMISSIONEROF APPEALS.IV/00-2004 DATED 05.01.2004 ISSUED BY THE COMMISSIONEROF APPEALS. EXT.P7:A TRUE COPY OF THE REVISION PETITION DATED 26.02.2004 FILED BEFORE THE RESPONDENT.FILED BEFORE THE RESPONDENT. PETITIONERS EXHIBITS:NIL //TRUE COPY// P.A. TO JUDGE dlk K. VINOD CHANDRAN, J ------------------------------------- W.P.(C)NO. 28378 of 2004 ----------------------------------------- Dated this the 23[rd] day of July, 2012 J U D G M E NT The petitioner is an individual assessee under the second respondent. The petitioner in the above writ petitionchallenges Ext.P1 order of the Commissioner rejecting theclaim of refund made by the petitioner in the year 1992-93.2.The brief facts leading to the above writpetition is that, the assessment of the petitioner for the year1992-93 was completed and there were amounts remainingdue and payable to the department as per the assessmentcompleted for the said year. The petitioner in the subsequentyears was also assessed under the Income Tax Act, 1961(hereinafter called as 'Act') and in the year 1996-97 anintimation under Section 143(1)(a) dated 26.03.1997 wasallegedly sent to the petitioner. The petitioner disputes thereceipt of the same. The above mentioned intimation underSection 143(1)(a), according to the department, clearly spoke of a refund for the year 1996-97 coming to Rs.1,50,000/-which together with interest under Section 244A was shown asadjusted towards the interest arrears of 1992-93. of a refund for the year 1996-97 coming to Rs.1,50,000/-which together with interest under Section 244A was shown asadjusted towards the interest arrears of 1992-93. 3.Subsequently, the petitioner approached theauthority under the Kar Vivad Samadhan Scheme 1998(hereinafter called as 'Scheme') for settlement of the arrearsof the assessment year 1992-93. The said application wasdated 17.12.1998. In pursuance of the application, on theauthority under the Scheme calling for the amounts pendingfor the said year; the second respondent, being the AssessingOfficer of the petitioner, had intimated a demand of taxcoming to Rs. 1,96,580/- and interest under Section 234Bcoming to Rs. 2,09,768/-. The petitioner on being granted acertificate under the scheme had settled the amounts certifiedthus clearing off the arrears in the year 1992-93. 4.It is the contention of the learned counsel for thepetitioner that subsequently it was realised that there wasremaining an amount of Rs. 1,50,000/- as refund due from the department in the year 1996-97; which the departmentclaimed as having been adjusted against the dues of 1992-93.Since the demand intimated to the authority under thescheme did not show such adjustment, it was contented thatthe said amounts are liable to be refunded by the departmentto the petitioner. The petitioner had first made such a requestby letter dated 04.01.2001 produced as Ext.P2 in the originalpetition. On being issued with Ext.P3 rejection letter thepetitioner was before the first appellate authority by way of anappeal which was withdrawn by Ext.P6. The subsequentapplication for revision by Ext.P7 dated 26.02.2004 wasdismissed by the Commissioner by Ext.P1 order. 5.The learned counsel for the petitioner wouldcontend that Ext.P1 order would clearly show that theintimation under Section 143(1) (a) for the year 1996-97 wasnot received by the petitioner and that the certificate issuedunder the Kar Vivad Samadhan Scheme did not reflect thededuction of the adjustment of the refund for the year 1996-97. The learned Standing Counsel for the departmenthowever would contend that Ext.P1 would only show that anacknowledgment of the receipt of the notice under Section 143(1)(a) was not in the files. The despatch of the notice wasevidenced from the file and the fact that the petitioner hadbeen claiming the deduction for Rs. 1,66,500/-, even going byExt.P2 would show that the petitioner was aware of the refundof Rs.1,50,000/- together with interest of Rs. 16,500/- andthe consequent adjustment. According to the learned StandingCounsel this is so evident since the refund was of an amountof Rs.1,50,000/- and 16,500/- rupees was towards interest,which the petitioner would not have been known aboutwithout the receipt of the intimation under Section 143(1)(a).It is also pointed out that the Commissioner had noticed inExt.P1 order as to the long delay in making an application forrevision; which again was not against a specific order. It wasalso noticed that even if Ext.P3 letter dated 08.01.2001 istreated as the impugned order the revision filed in the year W.P.(C)NO. 28378 of 2004 2004 is grossly delayed. 6.I have given anxious consideration to the facts as W.P.(C)NO. 28378 of 2004 2004 is grossly delayed. 6.I have given anxious consideration to the facts as disclosed from the records with reference to the provisions ofthe Kar Vivad Samadhan Scheme,1998. It is admitted that forthe year 1996-97 there was refund of Rs.1,50,000/- and thesaid amounts together with interest coming to Rs. 16,500/-was adjusted towards the interest of the arrears for the year1992-93. The same was also intimated by a notice underSection 143(1)(a) to the petitioner. Though the petitionerwould take a contention that he did not receive the same;from the facts discernible as also the averments made by thepetitioner, it is clear that he was aware of such a refund whichalong with interest was adjusted towards the year 1992-93.Before the authority under the Scheme also, the petitioner didnot choose to make any objection regarding the report madeby the Assessing Officer. 7.The computation of the tax payable on settlementunder the Scheme of 1998 is as per Clause 8 of the said The computation of the tax payable on settlement scheme. The actual computation of the amounts under the Scheme as per Sub Clause(a) of Clause 88 reads as under: “where the tax arrear is payable under the Income Tax Act 1961(43 of 1961),- (i) in the case of a declarant being a company ora firm at the rate of 35% of the disputed Income(ii) in the case of a declarant, being a personother than a company or a firm, at the rate of30% of the disputed income.” Sub Clause ii as extracted above would be applicable to the petitioner herein being an individual assessee. The settlementof tax payable and the amounts certified for payment wouldhence depend only on the disputed income; the interestcomponent not at all being taken into account for deciding thesettlement under the Scheme. In the light of the contentionsof the department that the amount was adjusted towards theinterest due for the year 1992-93, the reflection of anyadjustment or reduction in the quantum of interest; in theintimation of the Assessing Officer to the authority under thescheme would not have made any difference. The amounts certified to be paid on account of the settlement under theScheme is only based on the income. The petitioner could nothave been caused any prejudice. 8.The learned counsel for the petitioner wouldtake me through the decision reported in Parekh BrothersVs Commissioner of Income Tax, Kerala II, Ernakulam,and others (1984 150 ITR 105) where in a Division Benchof this Court had highlighted the duty of the Income TaxDepartment to assist the tax payer in getting eligible relief. Inthe present case; true, the assessing Officer, the secondrespondent had not computed the demand of the year 1992-93 properly; atleast with respect to the interest component.However, as noticed above even if the reduction was reflectedbefore the authority under the Scheme that would not havemade any difference since the interest component was not atall taken into account for deciding the liability under thescheme. In such circumstances, I am afraid, the DivisionBench decision does not help the petitioner in any manner. W.P.(C)NO. 28378 of 2004 The adjustment of the refund amounts together with interest,did not at all prejudice the petitioner under the Kar VivadSamadhan Scheme, 1998. It is also pertinent that therevision itself was delayed. Ofcourse the petitioner contendsthat the same was due to the appeal filed against the letter ofrejection. That alone in my opinion cannot enable thepetitioner to file a delayed revision. Be that as it may sincethis Court has found that there is no prejudice caused to thepetitioner and that there is absolutely no illegal enrichment bythe department; this Court is of the opinion that no revisioncan be ordered at this stage and the petitioner's claims for thesame is devoid of merit. The writ petition hence is dismissed without costs. Sd/-K. VINOD CHANDRAN,JUDGE.