Wp(C)/10214/2005 Of Gills Benny v. Chief Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC WEDNESDAY, THE 17TH DAY OF OCTOBER 2012/25TH ASWINA 1934 WP(C).No. 10214 of 2005 (N) --------------------------- PETITIONER(S): ------------- SMT.GILLS BENNY, PUNNELI PARAMBIL HOUSE, KOMBODINJAMAKKAL P.O., (VIA) KALLETTUMKARA PROPRIETOR, THOMSON, POULTRY FARM. BY ADVS.SRI.P.SANTHALINGAM (SR.) SRI.S.SHARAN RESPONDENT(S): -------------- CHIEF COMMISSIONER OF INCOME TAX AYAKAR BHAVAN, I.S. PRESS ROAD, ERNAKULAM. BY ADV. SRI.P.K.R.MENON,SR.COUNSEL,GOI(TAXES) BY ADV. SRI.GEORGE K. GEORGE, SC FOR IT SC SRI.JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-10-2012, ALONG WITH WPC. 10362/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP().10214/05 APPENDIX PETITIONER(S) EXHIBITS EXT. P1COPY OF THE REVALUATION APPLICATION DATED 17-02-2012SUBMITTED BY THE FIRST PETITIONER BEFORE THE RESPONDENTS EXT. P2COPY OF THE REVALUATION APPLICATION DATED 17-02-2012SUBMITTED BY THE SECOND PETITIONER BEFORE THE RESPONDENTS EXT. P3COPY OF THE JUDGMENT IN WP(C0 NO 6878 OF 2012 DATED 20-03-2012 /true copy/ PA To Judge ANTONY DOMINIC, J ........................................ W.P.(C)s.10214 & 10362/2005 ..............................................Dated this the 17[th] day of October, 2012 JUDGMENT Heard the learned counsel for the petitioners andalso the learned Standing Counsel appearing for therespondents. 2.Petitioners in these cases own Poultry farms. On4.1.2001, their premises were surveyed under Section133A of the Income Tax Act, when it was found that theywere not maintaining proper books of accounts.Subsequently, they filed returns for the assessment years1998-99, 1999-00 and 2000-01 returning taxable income.Assessments were completed and interest under Section234A, 234B and 234C were levied. There upon they madeExt.P1 applications to the Chief Commissioner on IncomeTax seeking waiver of the interest levied. That applicationwas rejected by the Chief Commissioner as per Ext.P4order. It is this order which is under challenge in thiswrit petition. 3.The ground on which the application has beenrejected is that the case of the petitioners is not coveredby the grounds mentioned in clauses (a) to (e) ofparagraph 2 of the Board's notification dated 23.5.1996. 4.Admittedly, Sections 234A to C do not provide forwaiver of interest. However, power of waiver has beenconferred on the Chief Commissioner and the DirectorGeneral by virtue of the Board's notification dated23.5.1996. Notification also provide in clauses (a) to (e),the circumstances in which the waiver can be granted.Those circumstances are extracted in paragraph 6 of theorder. 5.Case of the petitioners is that on account of a bonafide mistake, they could not file the return or pay tax intime. In the light of this contention, the question to beconsidered is whether the case of the petitioners iscovered by the circumstances mentioned in clauses (a) to(e) mentioned in the notification dated 23.5.1996.Following are the circumstances mentioned in thenotification referred to above:- (a).Where a search is conducted under section132 and books of accounts and other documentshave been seized and the assessee is unable tofurnish the return of income for the previous yearduring which the search was conducted. (b).Where cash is seized in the course of searchu/s 132, which is not allowed to be utilized forpayment of advance tax instalment or instalmentswhich fall due after the seizure and the assesseehas not paid fully or partly advance tax on thecurrent income. (c).Where any income chargeable to IncomeTax under any head other than Capital gains isreceived or accrued after the due date of paymentof instalment of advance tax which was neitheranticipated nor was in the contemplation of theassessee and the advance tax on such income inpaid in the remaining instalments. (a).Where a search is conducted under section132 and books of accounts and other documentshave been seized and the assessee is unable tofurnish the return of income for the previous yearduring which the search was conducted. (b).Where cash is seized in the course of searchu/s 132, which is not allowed to be utilized forpayment of advance tax instalment or instalmentswhich fall due after the seizure and the assesseehas not paid fully or partly advance tax on thecurrent income. (c).Where any income chargeable to IncomeTax under any head other than Capital gains isreceived or accrued after the due date of paymentof instalment of advance tax which was neitheranticipated nor was in the contemplation of theassessee and the advance tax on such income inpaid in the remaining instalments. (d).Where any income which was notchargeable to tax on the basis of any orderpassed by the jurisdiction of High Court in thecase of the assessee becomes taxable inconsequence of any retrospective amendment oflaw or a decision of the Supreme Court in his owncase which takes place after the end of any suchprevious year and hence the advance tax paid bythe assessee during the financial yearimmediately preceding the relevant assessmentyear is found to be less than the amount ofadvance tax payable on his current income. (e).Where the return of income could not befiled by the assessee due to unavoidablecircumstances and it was later filed voluntarilywithout detection by the assessing officer. 6.In my view, the contention raised by the learnedcounsel for the petitioners cannot be said to be one which is covered by any one of the aforesaid circumstances. Ifthat be so, rejection of their claim for waiver of interestcannot also be said to be illegal. I do not find any merit in the writ petitions. Theyare accordingly dismissed. Sd/- ANTONY DOMINIC, JUDGE mrcs /true copy/ PA To Judge