Wp(C)/26140/2009 Of Shamsudeen Mohammed v. Dy.commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 20TH DAY OF AUGUST 2014/ 29TH SRAVANA, 1936 WP(C).No. 26140 of 2009 (J) ---------------------------- PETITIONER(S) : ---------------------- SHAMSUDEEN MOHAMMED, ARAFA,NLRA-52(A), NEERAZHI LANE, ULLOOR,THIRUVANANTHAPURAM. BY ADVS.SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.K.S.HARIHARAN NAIR RESPONDENT(S) : ------------------------ 1. DY.COMMISSIONER OF INCOME TAX,CIRCLE 1(2), KAWDIAR, THIRUVANANTHAPURAM-695 003.CIRCLE 1(2), KAWDIAR, THIRUVANANTHAPURAM-695 003. 2. COMMISSIONER OF INCOME TAX (APPEALS)-1,THIRUVANANTHAPURAM-695 003.THIRUVANANTHAPURAM-695 003. 3. THE INCOME TAX APPELLATE TRIBUNAL,COCHIN BENCH, KOCHI - 682 015.COCHIN BENCH, KOCHI - 682 015. 4. THE JOINT COMMISSIONER OF INCOME TAX,THIRUVANANTHAPURAM-695 003.THIRUVANANTHAPURAM-695 003. 5. TAX RECOVERY OFFICER-RANGE I,AAYAKAR BHAVAN, KAWDIAR, THIRUVANANTHAPURAM - 695 003.AAYAKAR BHAVAN, KAWDIAR, THIRUVANANTHAPURAM - 695 003. 6.THE ASSISTANT COMMISSIONER OF INCOME TAX,CIRCLE -(2), THIRUVANANTHAPURAM - 695 003.CIRCLE -(2), THIRUVANANTHAPURAM - 695 003. 7.THE CHIEF COMMISSIONER OF INCOME TAX,THIRUVANANTHAPURAM - 695 003.THIRUVANANTHAPURAM - 695 003. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMV WP(C).No. 26140 of 2009 (J) APPENDIX PETITIONER(S) EXHIBITS: EXT.P1:COPY OF ASSESSMENT ORDER DATED 26.12.2006. EXT.P2:COPY OF ORDER DATED 28.11.2008 OF THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH.APPELLATE TRIBUNAL, COCHIN BENCH. EXT.P3:COPY OF MODIFIED ORDER DATED 16.01.2009 OF THE ASSESSING AUTHORITY.ASSESSING AUTHORITY. EXT.P4:COPY OF PENALTY NOTICE DATED 10.06.2009. EXT.P5:COPY OF REPLY DATED 19.06.2009. EXT.P6:COPY OF REPRESENTATION DATED 31.07.2009 FILED BEFORE THE 4TH RESPONDENT.THE 4TH RESPONDENT. EXT.P7:COPY OF NOTICE DATED 13.07.2009 OF THE 5TH RESPONDENT.EXT.P8:COPY OF THE ORDER DATED 16.09.2009 NO.AFTPM3721Q/TVM/2009 - 10.EXT.P8:COPY OF THE ORDER DATED 16.09.2009 NO.AFTPM3721Q/TVM/2009 - 10. EXT.P9:COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE COMMISSIONER OF INCOME TAX.THE COMMISSIONER OF INCOME TAX. EXT.P10(a):COPY OF THE REPRESENTATION DATED 27.10.2009 FILED BY THE PETITIONER TO THE 7TH RESPONDENT.THE PETITIONER TO THE 7TH RESPONDENT. EXT.P10(b):COPY OF THE REPRESENTATION DATED 27.10.2009 FILED BY THE PETITIONER TO THE 2ND RESPONDENT.THE PETITIONER TO THE 2ND RESPONDENT. EXT.P10(c):COPY OF THE REPRESENTATION DATED 27.10.2009 FILED BY THE PETITIONER TO THE 4TH RESPONDENT.THE PETITIONER TO THE 4TH RESPONDENT. RESPONDENTS EXHIBITS :NIL /TRUE COPY/ P.A.TO JUDGE K.VINOD CHANDRAN, J. --------------------------------------- W.P.(C) No. 26140 of 2009 () ---------------------------------------- Dated this the 20[th] day of August, 2014 JUDGMENT Petitioner is aggrieved by the non-consideration of arepresentation filed in accordance with the notificationissued under Section 119 of the Income Tax Act, 1961. 2.The short facts required for considering the case arethat the petitioner's assessment for the year 2004- 2005was concluded disallowing certain expenses. On thepetitioner's appeal, the expenses claimed were entirelyallowed by the first appellate authority. The revenueassailed the same before the Tribunal, which sustained50% of the dis-allowance. The petitioner wasunsuccessful in a revision before this Court.Subsequently penalty orders were also issued for thevery same assessment year. The petitioner has filedExt.P10A seeking waiver of the interest under Sections220(2), 234B and 234C of the Income Tax Act. Thepetitioner also has sought for waiver of penalty in W.P.(C) No. 26140 of 2009 () 2.The short facts required for considering the case arethat the petitioner's assessment for the year 2004- 2005was concluded disallowing certain expenses. On thepetitioner's appeal, the expenses claimed were entirelyallowed by the first appellate authority. The revenueassailed the same before the Tribunal, which sustained50% of the dis-allowance. The petitioner wasunsuccessful in a revision before this Court.Subsequently penalty orders were also issued for thevery same assessment year. The petitioner has filedExt.P10A seeking waiver of the interest under Sections220(2), 234B and 234C of the Income Tax Act. Thepetitioner also has sought for waiver of penalty in W.P.(C) No. 26140 of 2009 () Ext.P10A. The penalty which was imposed as per Ext.P8is under challenge in a properly instituted appealevidenced by Ext.P9. Hence there is no question ofconsideration of waiver of penalty nor can such waiverof penalty be considered under Section 119. Hence,the representation has to be confined to the waiver ofinterest sought for by the petitioner. The 7[th]respondent, if in receipt of Ext.P10A, in its original, shallissue notice within a month of the receipt of certifiedcopy of this judgment and after affording a personalhearing to the petitioner, dispose of the same. It ismade clear that this Court has not considered the issueof waiver at all and has not gone into the merits of thecase. The writ petition is disposed of. Sd/-