Wa/1466/2012 Of The Chief Commissioner Of Income Tax v. Dr. K.m.mehaboob

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR &THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM FRIDAY, THE 3RD DAY OF AUGUST 2012/12TH SRAVANA 1934WA.No. 1466 of 2012 () IN WPC/19895/2007 -----------------------------------------AGAINST THE JUDGMENT IN WPC.19895/2007 DATED 21-06-2012 APPELLANTS/RESPONDENTS:----------------------------------- 1. THE CHIEF COMMISSIONER OF INCOME TAX OFFICE OF THE COMMISSIONER OF INCOME TAX I.S.PRESS ROAD, ERNAKULAM, KOCHI-682018.2. THE COMMISSIONER OF INCOME TAX OFFICE OF THE COMMISSIONER OF INCOME TAX APPELLATE BHAVAN, NORTH BLOCK, KOZHIKODE-673001.3. THE TAX RECOVERY OFFICER OFFICE OF THE ADDITIONAL COMMISSIONER OF INCOME TAX RANGE-1, CALICUT-673001. BY ADVS.SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT/PETITIONER:------------------------------------ DR. K.M.MEHABOOB S/O. DR.K.MOIDU, 'SHADE' NEAR MALABAR CHRISTIAN COLLEGE, CALICUT. BY ADV. SRI.MILLU DANDAPANI THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03-08-2012,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR, &C.K.ABDUL REHIM, JJ. .................................................................... Writ Appeal No.1466 of 2012 .................................................................... Dated this the 3[rd] day of August, 2012. JUDGMENT Ramachandran Nair, J. Revenue is in appeal against judgment of the learned Single Judge declaring respondent's eligibility for complete waiver of defaultinterest payable under Section 220(2) of the Income Tax Act. Atadmission stage Adv. Sri.Millu Dandapani took notice and opposed theWrit Appeal. We have heard both Standing Counsel for the appellantand counsel appearing for the respondent. 2. After hearing both sides and on going through the judgment,we notice that on facts the findings of the learned Single Judge are notdisputed by the department. However, the contest is on the legalproposition that it is the satisfaction of the statutory authority thatentitles the defaulter for waiver and not that of the High Court. On thelegal question we agree with the Standing Counsel that it is for theCommissioner or the Chief Commissioner to consider with reference tofacts on record as to whether all the three conditions stated in Section220(2A) are satisfied and if so, to grant partial or full waiver. In fact, waiver can be directly proportionate to the extent of satisfaction ofconditions. However, in this case the facts are unique in as much as thelearned Single Judge found that for 16 years after completion ofassessment department did not try to trace the partners of thedefunct/defaulter firm and for the first time notice of demand wasserved on the respondent in 2005 by virtue of his liability as partner ofdissolved firm under Section 189(3) of the Income Tax Act. It isfurther on record that within one month from date of service of notice,the respondent made full payment. We, therefore, do not find on factsanything irregular, illegal or improper on the part of the Single Judge todirect appellants to grant full waiver of default interest. Strangely theAct does not provide for payment of collection of minimumcompensatory interest for delayed payment and what is provided underSection 220(2A) is waiver of full interest payable under Section 220(2)of the Act, if satisfied. Consequently we dismiss the Writ Appeal. C.N.RAMACHANDRAN NAIRJudge C.K.ABDUL REHIMJudge