Wp(C)/14310/2009 Of Anto Nitto v. The Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC THURSDAY, THE 3RD DAY OF JANUARY 2013/13TH POUSHA 1934 WP(C).No. 14310 of 2009 (G) --------------------------- PETITIONER(S): ------------------------- ANTO NITTO, KALAPPURAKKAL HOUSE, EDACOCHIN, COCHIN 682 006. BY ADVS.SRI.KMV.PANDALAI SMTS.HEMALATHA RESPONDENT(S): --------------------------- 1. THE COMMISSIONER OF INCOME TAX, COCHIN, ERNAKULAM. 2. THE TAX RECOVERY OFFICER, ERNAKULAM. ERNAKULAM. R1 & R2 BY ADV. SRI.JOSE JOSEPH, SC, INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.14310/2009 G APPENDIX PETITIONER'S EXHIBITS: P1:COPY OF NOTICE IN FORM ITC P 16 DTD. 24/09/2008 ISSUED BY THE 2ND RESPONDENT.2ND RESPONDENT. P2:COPY OF PETITION FOR WAIVER DTD. 5/11/2008 FILED BEFORE THE FIRST RESPONDENT.FIRST RESPONDENT. P3:COPY OF ORDER OF THE FIRST RESPONDENT DTD. 5/12/2008. P4:COPY OF NOTICE DTD. 21/11/2007 ISSUED BY THE SECOND RESPONDENT (THEN TAX RECOVERY OFFICER, ALWAYE).RESPONDENT (THEN TAX RECOVERY OFFICER, ALWAYE). RESPONDENT'S EXHIBITS: R1(A): COPY OF THE LETTER RECEIVED FROM CORPORATION OF COCHIN NO.SYP2 2525/99 DTD. 29/10/2008. NO.SYP2 2525/99 DTD. 29/10/2008. /TRUE COPY/ P.A.TO JUDGE ANTONY DOMINIC, J ........................................ W.P.(C).14310/2009 .............................................. Dated this the 3[rd] day of January, 2013 JUDGMENT Heard the learned counsel for the petitionerand the learned counsel for the respondents. 2.Petitioner challenges Ext.P3, an order passedby the 1[st] respondent on an application made by thepetitioner for waiver of interest as providedunder Section 220(2A) of the Income Tax Act, 1961.It is seen that by Ext.P2 application made by thepetitioner for waiver, he requested therespondents to waive the interest liability ofRs.8,54,476/-. That application is seen rejectedby Ext.P3 order. It is also seen from thepleadings that subsequently, the whole interestliability of the petitioner was satisfied byappropriating the amounts from out ofRs.18,06,402/- remitted by the Corporation ofCochin which was due to the petitioner in a landacquisition proceedings. 3.In Ext.P3, mainly two reasons are stated.First reason stated for rejection of thepetitioner's application is that the petitionerdid not produce any proof that he had no otherbusiness or source of income. It is also statedthat there has not been any co-operation extendedto the Department during the recovery proceedings. 4.Insofar as the absence of any other businessor source of income is concerned, first of all,respondents themselves have no case that thepetitioner had any other business or source ofincome. It is also the admitted case of therespondents that the entire properties of thepetitioner are under attachment and that theinterest liability of the petitioner was satisfiedfrom out of the compensation amount remitted bythe Corporation of Cochin. These facts, in myview, prima facie substantiate the case of the petitioner that he had no business or source ofincome and that payment of interest as demanded,would cause genuine hardship. 4.Insofar as the absence of any other businessor source of income is concerned, first of all,respondents themselves have no case that thepetitioner had any other business or source ofincome. It is also the admitted case of therespondents that the entire properties of thepetitioner are under attachment and that theinterest liability of the petitioner was satisfiedfrom out of the compensation amount remitted bythe Corporation of Cochin. These facts, in myview, prima facie substantiate the case of the petitioner that he had no business or source ofincome and that payment of interest as demanded,would cause genuine hardship. 5.Finding of non cooperation on the part of thepetitioner is basically on the ground that thepetitioner, as legal heir of K.J.Columbus andrepresenting the firm M/s Ocean Fisheries,committed default in complying with theconditional waiver order and the instalmentfacility. The fact that these orders were notcomplied with, according to the petitioner, wasfor the reason that he had no source of money tocomply with the same. In other words, his case isthat there has not been any wilful default. Thiscontention again, is at least, prima facie, provedby the fact that the entire properties of thepetitioner was under attachment and that theentire liabilities were subsequently cleared bymaking appropriation of the compensation amount. Therefore, I am unable to uphold both the groundsrelied on in Ext.P3 against the petitioner. 6.Learned counsel for the revenue contendedthat Ext.P3 order concerns only the interestliability of the petitioner and the fact that theinterest liability has now been discharged byappropriating the compensation received from theCorporation of Cochin itself show that there isno genuine hardship. I am unable to agree. Thefact that the liability has been discharged byitself will not indicate that there is nohardship. If the entire amount available has beenappropriated by the revenue, that itself can giverise to a case of genuine hardship. 7.For these reasons, Ext.P3 cannot be sustainedand therefore, is quashed. 1[st] respondent isdirected to reconsider Ext.P2 application made bythe petitioner with notice to him and pass fresh W.P.(C).14310/09 5 orders, in accordance with law. This shall be done within three months of receipt of a copy of this judgment. Writ petition is disposed of. Sd/- ANTONY DOMINIC, JUDGE mrcs /true copy/ sd/- P.A. To Judge