Wp(C)/21068/2005 Of A.aboobacker, M/S.popular Cars v. The Chief Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 WP(C).No. 21068 of 2005(G) -------------------------- PETITIONER: ------------ A.ABOOBACKER, M/S.PUPULAR CARS, EDARICODE, KOTTACKAL, MALAPPURAM. BY ADV. SRI.T.M.SREEDHARAN SMT.C.K.SHERIN RESPONDENTS: ------------- 1. THE CHIEF COMMISSIONER OF INCOME TAX CENTRAL REVENUE BUILDING, I.S.PRESS ROAD, COCHIN-682 018. 2. THE INCOME TAX OFFICER, WARD-1, TIRUR. BY ADV. SRI.P.K.R.MENON,SR.COUNSEL,GOI(TAXES) FOR R2 & 3 SRI.GEORGE K. GEORGE, SC FOR IT FOR R2 & 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE APPLICATION FOR WAIVER OF INTEREST DATED 12.4.2004SUBMITTED TO THE FIRST RESPONDENT. EXT.P2 TRUE COPY OF ORDER DATED 17.5.2005 VIDE NO. CC. CHN/W1/CLT-1/2004-05 RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. --------------------------------------------W.P.C. NO. 21068 OF 2005 -------------------------------------------- Dated this the 20th day of June, 2008 JUDGMENT Petitioner is challenging Ext.P2 whereunder the Commissioner ofIncome-tax declined to waive interest levied under Section 234A and Bof the I.T. Act. Even though counsel for the petitioner contended thatExt.P2 is not tenable, standing counsel pointed out that Commissioneron examination of facts found that none of the conditions of thecircular issued by the Board for waiver of interest is satisfied. Therehave been consistent decisions by several High Courts holding thatwaiver of interest should be strictly in accordance with the conditionsof circular issued by the Board. Since petitioner has not satisfied theconditions for waiver, there is no scope for interference with Ext.P2.Even though counsel has stated that clause (e) of the Circular issatisfied in as much as voluntary return was filed, I find that whenreassessment notice was issued under Section 148 the assessee, insteadof filing return on due date, took 10 months to file a letter stating thathis original return may be treated as return filed under Section 148. In fact, the finding of the commissioner is that levy of interest is upto thisdate, treating the date of letter as the date of filing of return. Thereforeno interference is called for in this matter. Another issued raised bycounsel for the petitioner is that calculation of interest under Section234B is not correct. This was not an issue raised before theCommissioner and therefore it cannot be considered in this WritPetition. However, I leave it open to the petitioner to make anapplication for rectification of mistake if any committed in the levy ofinterest. Since this WP was pending, the Officer should entertain therectification application if filed within one month from today, alongwith a copy of this judgment, and dispose of the same on merits. Reserving the above right, W.P. is dismissed. kk (C.N. RAMACHANDRAN NAIR) Judge