The Hon’ble Mr. Justice D v. Shylendra Kumar

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 3[rd] DAY OF JUNE, 2013 PRESENT THE HON’BLE MR. JUSTICE D. V. SHYLENDRA KUMAR AND THE HON’BLE MRS. JUSTICE B.S. INDRAKALA -WRIT APPEAL Nos. 1918 to 1923/2012 (TIT) BETWEEN: B. Gajendra Kumar, Aged about 46 years, Son of late B. Vasudeva Achar, Prop. M/s. Durga Credits & Investments, ‘Vasudeva’ Main Road, Haleangady, Mangalore-574 146. … APPELLANT (By Sri S. Parthasarathi and Sri Mallaharao, Advs.) AND: 1.The Income-tax Officer, Ward-1(1), Attavar, Mangalore. 2.The Chief Commissioner of Income Tax, ‘Aayakar Bhavan’ Plot No.5, EDC Complex, Patto Plaza, Panjim-Goa. 3.The Central Board of Direct Taxes, North Block, Central Secretariat, Jeevan Deep Building, Parliament Street, New Delhi-110 001. …RESPONDENTS [By Sri K.V. Aravind, Adv.] … These Writ Appeals are filed under Section of the 4 of the Karnataka High Court Act praying to set aside the order dated 14.3.2012 passed in W.P.Nos. 7321-7326/2012 (T-IT). These Writ Appeals coming on for Preliminary Hearing this day, Shylendra Kumar. J., delivered the following: ORDER These writ appeals by an assessee and under the provisions of the Income Tax Act are directed against the order dated 14[th] March 2012 passed by the learned Single Judge of this Court in W.P.Nos. 7321 – 7326/2012 (Tax-IT) rejecting the petitions. 2. In the writ petitions, appellant/petitioner had questioned the legality of the order passed on behalf of the Central Board of Direct Taxes on 23.6.2011 rejecting the relief of waiver of interest charged under Section 234(B) of the Income Tax Act in favour of the assessee for the assessment years 2000-01 to 2005-06 copy of which are produced at annexure-G to the writ petitions, by apprising the assessee that he should approach the Chief Commissioner of Income Tax of the area for such relief as the powers of the Board are now delegated to this Officer. 3. Writ Petitioner had questioned this order on several grounds including that in the earlier round of writ petitions preferred by the very petitioner in W.P.Nos. 18297 to 18401/2010. As per the order dated 28[th] January 2011, this Court had disposed of the said writ petitions based on the submissions made on behalf of the revenue to the effect that if the petitioner had any grievance in respect of the order that had been passed earlier by the Chief Commissioner of Income Tax, on an application filed by the assessee seeking for waiver of interest under the provisions of Sections 234A and 234B of the Income Tax Act, it is open for him to approach the Board. It is, thereafter, the appellant/petitioner had approached the Board but was issued with the endorsement at Annexure-G dated 23[rd] June, 2011 directing the assessee to approach the Chief Commissioner of Income Tax. The assessee questioned this order before this Court in the writ petitions contending that when this Court had directed the Board to consider the matter, it ought to have been considered by the Board itself and the direction should not have been ignored and the Board could not have washed off its hands by saying that the assessee can approach the concerned Chief Commissioner of Income Tax/Director General of Income Tax (for short hereinafter referred to as ‘CCIT/DGIT’) to whom the powers had been delegated 4. However the learned Single Judge of this Court opined that the power of the Board exercisable under Section 119(2)(a) of the Income Tax Act, is an enabling provision empowering the Board to pass orders in favour of the assessee for waiver of interest levied under Sections 234A, 234B and 234C of the Income Tax Act, and that power having already been delegated to the CCIT/DGIT, the question of remanding the matter yet again directing the Board to reconsider the matter, does not arise and opined that there is no merit in the writ petitions. It is aggrieved by this order the present writ appeals are filed. 5. Mr. S. Parthasarathi, learned Counsel appearing 4. However the learned Single Judge of this Court opined that the power of the Board exercisable under Section 119(2)(a) of the Income Tax Act, is an enabling provision empowering the Board to pass orders in favour of the assessee for waiver of interest levied under Sections 234A, 234B and 234C of the Income Tax Act, and that power having already been delegated to the CCIT/DGIT, the question of remanding the matter yet again directing the Board to reconsider the matter, does not arise and opined that there is no merit in the writ petitions. It is aggrieved by this order the present writ appeals are filed. 5. Mr. S. Parthasarathi, learned Counsel appearing on behalf of the appellant submits at the first instance, that the Board has not given effect to the directions issued by this Court. He secondly contended that the order of the Chief Commissioner of Income Tax dated 11.2.2009 vide Annexure-B purporting to have been passed under Section 119(2)(a) of the Income Tax Act on the application of the appellant seeking for waiver of interest is not a speaking order that for rejection of the assessee’s application for waiver of interest under Section 234-B of the Act, no reasons is given and that it is not a speaking order. 6. In so far as this aspect is concerned, though it opined that there is favourable circumstance to waive the levy of interest, there is nevertheless decline of the request in respect of the levy of interest under Section 234-B of the Act. Therefore, the order requires reconsideration but the Board has not acted as per the directions of this Court and as the matter warrants interference, the learned Single Judge was not correct in rejecting the writ petitions. 7. Notice had been issued to the respondents and they are represented by Mr. K.V. Aravind, learned Standing Counsel for the Income Tax Department. With the consent of Counsel for petitioner and respondents, we have heard for disposal though appeal has come up only for admission. 8. Mr. Aravind, learned Standing Counsel for the respondents would submit that the order passed by the Board is conclusive as the Board has already delegated the power to Chief Commissioner of Income Tax and it cannot sit in appeal against these orders passed by the authority to whom the power had been delegated and therefore, there is no occasion for the Board to pass orders after the Chief Commissioner of Income Tax has passed an order in exercise of his delegated powers. Hence, in the circumstances, no interference is called for with the order passed by the learned Single Judge declining to send the matter yet again to the Board. 9. We find some force in the submission of Sri Parthasarathi that in the present case the complaint of the assessee requesting for waiver of interest under Section 234-B of the Income Tax Act had not received due consideration, etc. When the writ petitions were filed questioning this order, this Court observed that he can approach the Central Board of Direct Taxes which is of no avail to the assessee, as indicated in the impugned endorsement – Annexure-G issued on behalf of the Board. 10. The apprehension of the assessee is that even if the appellant/writ petitioner should approach the Chief Commissioner of Income Tax in the light of the earlier order passed by the Chief Commissioner of Income Tax, he may not yet again look into the matter. 11. In the peculiar facts and circumstances of the case and in view of the past history, we deem it proper to interfere with the order passed by the Chief Commissioner of Income Tax to the extent of declaring the relief sought for by the assessee in respect of waiver of interest levied under Section 234-B of the Act is concerned and direct the Chief Commissioner of Income Tax to reconsider the matter and to pass orders on merits giving reasons. We make it clear, this does not mean that we direct the Chief Commissioner of Income Tax to pass orders in one way or the other. 11. In the peculiar facts and circumstances of the case and in view of the past history, we deem it proper to interfere with the order passed by the Chief Commissioner of Income Tax to the extent of declaring the relief sought for by the assessee in respect of waiver of interest levied under Section 234-B of the Act is concerned and direct the Chief Commissioner of Income Tax to reconsider the matter and to pass orders on merits giving reasons. We make it clear, this does not mean that we direct the Chief Commissioner of Income Tax to pass orders in one way or the other. 12. Assessee may be permitted to appear in person or through his Counsel before the Chief Commissioner of Income Tax and given an opportunity of hearing before passing of the order. Writ Appeals disposed of accordingly. SD/- JUDGE SD/- JUDGE Nsu/-