Wa/1723/2017 Of The Joint Commissioner Of Income Tax Calicut v. Grihalakshmi Productions

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE A.M.BABU FRIDAY, THE 22ND DAY OF SEPTEMBER 2017/31ST BHADRA, 1939 WA.No. 1723 of 2017 IN WP(C).6418/2017 ------------------------------------------- AGAINST THE JUDGMENT IN WP(C) 6418/2017 of HIGH COURT OF KERALADATED 26.5.2017 --------- APPELLANTS/RESPONDENTS 1 TO 4: ----------------------------------------- 1. THE JOINT COMMISSIONER OF INCOME TAX , RANGE 1, KOZHIKODE. RANGE 1, KOZHIKODE. 2. THE PRINCIPAL COMMISSIONER OF INCOME TAX, CALICUT, AAYAKAR BHAVAN, NORTH BLOCK, MANANCHIRA. MANANCHIRA. 3. COMMISSIONER OF INCOME TAX (APPEALS), AAYAKAR BHAVAN, NORTH BLOCK,MANANCHIRA. 4. CENTRAL BOARD OF DIRECT TAXES, MINISTRY OF FINANCE, NEW DELHI. BY ADVS.SRI.CHRISTOPHER ABRAHAM, INCOME TAX DEP SRI.K.M.V.PANDALAI, INCOME TAX DEPARTMENT RESPONDENTS/PETITIONER & 5TH RESPONDENT: ------------------------------------------------------- 1. GRIHALAKSHMI PRODUCTIONS, KTC BUILDING, Y.M.C.A.ROAD, CALICUT-673001. 2. UNION OF INDIA, MINISTRY OF FINANCE, NEW DELHI, REP. BY ITS SECRETARY-110001. BY SRI.PREMJIT NAGENDRAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22-09-2017, ALONG WITH WA. 1901/2017, WA. 1787/2017, THE COURT ONTHE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC & A. M. BABU, JJ. ------------------------------------------------ W. A. Nos.1723, 1787 & 1901 of 2017 ------------------------------------------------Dated this the 22[nd ]day of September, 2017 JUDGMENT Antony Dominic, J. 1. aWrit Appeal Nos.1723, 1901 arise from thecommon judgment in W.P.(C) Nos.6417 and 6418 of 2017respectively. Writ Appeal No.1787 of 2017 arises from thejudgment in W.P.(C) No.23618 of 2017, which was disposedof following the former common judgment. 2. In these appeals, the Revenue is challenging theaforesaid judgments rendered by the learned single Judgewhereby the learned single Judge has upheld theentitlement of the assessees to have their applications forthe benefit of the Direct Tax Dispute Resolution Scheme,2016, processed and orders passed untramelled by Exts.P11and P12 circulars issued by the CBDT. W. A. Nos.1723, 1787 & 1901 of 2017 3. We heard the learned Senior Counsel for theRevenue and the respective counsel for the assessees.Revenue and the respective counsel for the assessees. 4. The only contention that was raised before us bythe learned Senior Counsel for the Revenue was that, thecases in hand, being cases where penalty has been leviedunder Sections 271D and 271E of the Income Tax Act andas the Sections do not specify any minimum penalty ormaximum penalty, the cases of the assessees are outsidethe Amnesty Scheme mentioned above. To substantiate thiscontention, the learned Senior Counsel referred us to Clause201(1)(h) defining “tax arrear” and sub-clause (b) of Clause202 of the Scheme. Particular emphasis was given to sub-clause(b) wherein it is provided that the penalty of twenty-five percent of the minimum penalty leviable and the taxand interest payable on total income finally determined,shall be payable by the assessee under the Scheme inquestion. According to the learned Senior Counsel, thelegislature having specified minimum 25% of the penalty W. A. Nos.1723, 1787 & 1901 of 2017 leviable as the amount payable, only those assessees whohave been levied penalty under the provisions of the IncomeTax Act which provides for levy of minimum penalty andmaximum penalty alone can claim the benefit of theScheme. 5. Having considered the submission made, apart from W. A. Nos.1723, 1787 & 1901 of 2017 leviable as the amount payable, only those assessees whohave been levied penalty under the provisions of the IncomeTax Act which provides for levy of minimum penalty andmaximum penalty alone can claim the benefit of theScheme. 5. Having considered the submission made, apart from the fact that such an argument was not raised when the writpetitions were heard by the learned single Judge, we alsofind that on merits, this contention is liable to be rejected. Areading of Section 271D shows that a person who is liable topay penalty thereunder shall be liable to pay, by way ofpenalty, a sum equal to the amount of the loan or deposit orspecified sum so taken or accepted, in contravention ofSection 269SS. Similarly, under Section 271E also, thepenalty provided is a sum equal to the amount of loan ordeposit or specified advance, if so repaid. When a specifiedsum is so provided as the penalty, such specified sum is theminimum penalty payable. That does not, however, mean W. A. Nos.1723, 1787 & 1901 of 2017 that the benefit of the Scheme can be claimed only by those assessees who have been levied penalty under theprovisions of the Act providing for minimum penalty andmaximum penalty. 6. Therefore, we do not find any reason to accept the plea. Appeals fail and are dismissed accordingly. Sd/- JUDGE ANTONY DOMINIC Sd/- A. M. BABU JUDGE kns/- //TRUE COPY// P.S. TO JUDGE