Wp(C)/21824/2012 Of A.m. Moosa v. The Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC THURSDAY, THE 27TH DAY OF SEPTEMBER 2012/5TH ASWINA 1934 WP(C).No. 21824 of 2012 (C) --------------------------- PETITIONER(S): ------------- A.M. MOOSA, AGED 78 YEARS BHARAT SEA FOODS CHANDIROOR ALAPPUZHA 688547 BY ADV. SRI.S.ARUN RAJ RESPONDENT(S): -------------- 1. THE COMMISSIONER OF INCOME TAX PUBLIC LIBRARY BUILDING KOTTAYAM 686 001 2. DY.COMMISSIONER OF INCOME TAX CIRECLE 1 ALAPPUZHA 688 001 3. THE TAX RECOVERY OFFICER PUBLIC LIBRARY BUILDINGS KOTTAYAM 686001 BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON27-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.21824/12 APPENDIX PETITIONER'S EXHIBITS EXT.P1TRUE COPY OF THE ASSESSMENT ORDER U/S 143(3) DATED 19-1-1995PASSED BY THE ASSESSING OFFICEREXT.P2TRUE COPY OF THE ORDER OF THE HON'BLE INCOME TAX APPELLATETRIBUNAL COCHIN BENCH COCHIN I.T.A 498(COCH)/1995 DATED 15-09-1995EXT.P3TRUE COPY OF THE ORDER IN ITR NO 112 OF 1998 DATED 2NDAUGUST 2004 PASSED BY THE HON'BLE HIGH COURT OF KERALA ERNAKULAMEXT.P4TRUE COPY OF THE ORDER OF THE HON'BLE INCOME TAX APPELLATETRIBUNAL/COCHIN BRANCH COCHIN UNDER SECTION 260(1) I.T ACT 1961 IN ITA498/COCH/95 DATED 23-06-2006EXT.P5TRUE COPY OF THE PROCEEDINGS OF THE ASSESSING OFFICER DATED18-10-2006EXT.P6TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THEHON'BLE COMMISSIONER OF INCOME TAX KOTTAYAM DATED 13TH NOVEMBER 2006EXT.P7TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORETHE HON'BLE COMMISSIONER OF INCOME TAX KOTTAYAM DATED 13TH NOVEMBER 2006EXT.P7TRUE COPY OF THE ORDER OF THE HON'BLE COMMISSIONER OF INCOMETAX KOTTAYAM IN FILE NO 309(13)/WAIV/220(2)/CI/2006-07 DATED 05-08-2011REJECTING THE WAIVER PETITION U/S. 220(2A) //True Copy// PA to Judge ANTONY DOMINIC, J. ================ W.P.(C) NO. 21824 OF 2012 =================== Dated this the 27[th] day of September, 2012 J U D G M E N T Petitioner challenges Ext.P7 order. For the assessment year92-93, the claim of the petitioner for deduction under Section80HHC of the Income Tax Act was finally held against thepetitioner by Ext.P3 judgment of this Court. Thereafter theTribunal passed Ext.P4 consequential order and the assessingofficer passed Ext.P5. In Ext.P5 order, the assessing officer alsolevied interest as provided under Section 220(2) of the IncomeTax Act. Petitioner thereupon filed Ext.P6 application underSection 220(2A) of the Act seeking waiver of the interest levied.On that application, petitioner was heard and finally theCommissioner passed Ext.P7 order rejecting the application. It isthis order which is challenged in the writ petition. 2.I heard the learned counsel for the petitioner and alsothe learned standing counsel appearing for the respondents. Therelevant portion of Ext.P7 order as contained in para 4 thereofreads as under; “On receipt of the waiver petition from the assesseeon 20/11/2006, a report was called for from the :2 : assessing officer. The AO in his report dated11.4.2007 stated the assessee had filed his return ofincome for the AY 2006-07 and as per the BalanceSheet as on 31/3/2006, the assessee had cashbalance of Rs.23,04,809, Debtors of Rs.30,07,500 asagainst creditors of Rs.3,16,469/-, export incentivesreceivable of Rs.14,30,904/- and assets worthRs.52,97,037/-. The assessee has to satisfy all thethree conditions stipulated under section 220(2A) ofthe IT Act for getting the interest reduced or waived.It is seen from the report of the Assessing Officerthat as on 31/3/2006, the assessee did not havegenuine financial hardship and was in a position toremit the interest portion of the demand. Instead,the assessee chose to file a waiver petition.” 3.Section 220(2A) lays down three conditions for an 3.Section 220(2A) lays down three conditions for an assessee to claim the benefit thereof and these conditions are; (i)payment of such amount [has caused or wouldcause genuine hardship] to the assessee;cause genuine hardship] to the assessee; (ii)default in the payment of the amount on which[interest has been paid or was payable] underthe said sub-section was due to circumstancesbeyond the control of the assessee; and[interest has been paid or was payable] underthe said sub-section was due to circumstancesbeyond the control of the assessee; and (iii)the assessee has co-operated in any inquiryrelating to the assessment or any proceeding forthe recovery of any amount due from him.”relating to the assessment or any proceeding forthe recovery of any amount due from him.” 4.In so far as this case is concerned, in my view, the firstcondition of genuine hardship has not been proved by thepetitioner. The findings in Ext.P7 extracted above shows that theassessee had cash balance, amounts due from the debtors,amount due towards export incentives and also substantial assets.Therefore, it cannot be said that the assessee has proved genuine hardship which is a condition precedent for claiming the benefit ofSection 220(2A) of the Act. Therefore the view taken by theCommissioner in Ext.P7 cannot be said to be illegal. 5.True, leaned counsel for the petitioner relied on theApex Court judgment in B.M.Malani v. CIT (306 ITR 196) andcontended that the fact that the assessee has assets does notmean that he has no difficulties. As a matter of principle, I amwilling to agree with the counsel. In so far as this case isconcerned, even if the assets are eschewed, the assessee areseen to possess other resources which disproves his claim ofgenuine hardship. In such circumstances, I am not persuaded tointerfere. Writ petition is dismissed. ANTONY DOMINIC, JUDGE