Wp(C)/29247/2007 Of Moidu's Medicare Pvt.ltd v. Asst.commissioner Of Income Tax,Calicut

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE B.P.RAY FRIDAY, THE 7TH DAY OF SEPTEMBER 2012/16TH BHADRA 1934 WP(C).No. 29247 of 2007 (F) --------------------------- PETITIONER(S):------------- MOIDU'S MEDICARE(P)LTD., NATIONAL HOSPITAL, INDIRA GANDHI ROAD CALICUT-673001., REPRESENTED BY ITS MANAGING DIRECTOR, DR.K.MOIDU. BY ADV. SRI.MILLU DANDAPANI RESPONDENT(S): -------------- 1. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1(1), CALICUT. 2. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, CALICUT. CENTRAL CIRCLE, CALICUT. 3. THE CHIEF COMMISSIONER OF INCOME TAX, ERNAKULAM, COCHIN-682018. ERNAKULAM, COCHIN-682018. BY ADV. SRI.P.K.R.MENON,SR.COUNSEL,GOI(TAXES) BY ADV. SRI.GEORGE K. GEORGE, SC FOR IT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29247 of 2007 (F) APPENDIX PETITIONER'S EXHIBITS: P1:COPY OF ORDER DATED 01-08-2002 ISSUED BY FIRST RESPONDENT. P1(A):COPY OF ORDER DATED 5-7-1999 ISSUED BY 2ND RESPONDENT. P2:COPY OF WRITTEN SUBMISSION DATED 19-5-2000 SUBMITTED BY PETITIONER BEFORE THE 3RD RESPONDENT.PETITIONER BEFORE THE 3RD RESPONDENT. P2(A) :COPY OF WRITTEN SUBMISSION DATED 19-5-2000 SUBMITTED BY PETITIONER BEFORE THE 3RD RESPONDENT.PETITIONER BEFORE THE 3RD RESPONDENT. P3:COPY OF LETTER DATED 19-09-2006 SUBMITTED BY PETITIONER BEFORE 3RD RESPONDENT.BEFORE 3RD RESPONDENT. P3(A):COPY OF PETITION DATED 19-11-2006 SUBMITTED BY PETITIONER BEFORE 3RD RESPONDENT.PETITIONER BEFORE 3RD RESPONDENT. P4:COPY OF ORDER DATED 25-9-2006 ISSUED BY 3RD RESPONDENT. P5:COPY OF ORDER NO.F400/234-95-IT (B) DATED 23-05-1996 SUBMITTED BY PETITIONER BEFORE 3RD RESPONDENT.SUBMITTED BY PETITIONER BEFORE 3RD RESPONDENT. P6:COPY OF THE ORDER NO.F 400/129/2002-IT(B) DATED 26-06-2006. RESPONDENTS' EXHIBITS: NIL. /TRUE COPY/ P.A. TO JUDGE B.P. RAY, J. - - - - - - - - - - - - - - - - -W.P.(C).No.29247 of 2007 - - - - - - - - - - - - - - - - Dated this the 07[th ]day of September, 2012. JUDGMENT Heard the learned counsel Mr.Millu Dandapani for thepetitioner and the leaned senior standing counselMr.P.K.R.Menon for the respondents. The petitioner has filedthis writ petition with the following prayers: “i) call for the records leading to issue of Ext.P4 and quash thesame by issuing a Writ of Certiorari or any other appropriate writor order or direction. ii) declare that the respondents are not entitled to initiate any stepsto recover interest u/ss 234A, 234B and 234C of the Income Tax Act1961 as notified in Ext.P1. iii) issue a writ of mandamus or any other appropriate writ or orderor direction, commanding the respondents not to initiate any stepsto recover interest charged u/ss 234A, 234B, 234C as notified inExt.P1.” 2. Petitioner is an assessee under the Income Tax Act 1961, under the jurisdiction of the Assistant Commissioner of Income Tax, Circle 1 (1), Calicut, 1[st] respondent herein. Inrespect of assessment for Assessment year 1994-95, the returnwas due to be filed on 30-11-1994. Petitioner filed returndeclaring the total income of Rs.29,91,700/- on 30-04-1996. Inrespect of assessment for assessment year 1995-96, return ofincome was due to be filed on 30-11-1995. Petitioner filedreturn declaring the total income of Rs.9,41,550/- on 29-11-1996. Subsequently, the revised return was filed on 16-07-1997 declaring income of Rs.12,49,660/-. 3. Petitioner's case is that there was a search under 2. Petitioner is an assessee under the Income Tax Act 1961, under the jurisdiction of the Assistant Commissioner of Income Tax, Circle 1 (1), Calicut, 1[st] respondent herein. Inrespect of assessment for Assessment year 1994-95, the returnwas due to be filed on 30-11-1994. Petitioner filed returndeclaring the total income of Rs.29,91,700/- on 30-04-1996. Inrespect of assessment for assessment year 1995-96, return ofincome was due to be filed on 30-11-1995. Petitioner filedreturn declaring the total income of Rs.9,41,550/- on 29-11-1996. Subsequently, the revised return was filed on 16-07-1997 declaring income of Rs.12,49,660/-. 3. Petitioner's case is that there was a search under Section 132 of Income Tax Act in the premises of petitioner andresidential premises of their directors during the period from25-07-1994 to 01-08-1994. At the time of search, latest incometax return filed by petitioner was for the assessment year1993-94. This return was filed on 05-05-1995 declaring theincome at Rs.1,59,320/-. Preparation of accounts and audit ofaccounts was, therefore, got delayed. Therefore, there was adelay of 18 months in respect of assessment year 1994-95 and 12months in respect of assessment year 1995-96 in filing thereturns. 4. As per Exts.P1 and P1(a) orders 1[st] and 2[nd] respondentshave imposed interest on the petitioner as provided u/s 234 A,234 B and 234 C of the Income Tax Act. Petitioner filed petitionsu/s.119 (2) (a) of the Act dated 19-05-2000 for waiver of interestbefore the 3[rd] respondent as per Exts.P2 and P2(a). Exts.P2 andP2(a) petitions were pending before 2[nd] respondent from 2000onwards. The cases were listed and taken up only in 2006.Before hearing, the petitioner submitted Exts.P3 and P3(a)written submissions before the 3[rd] respondent. 5. The application of the petitioner was disposed videExt.P4 order. On perusal of the impugned order Ext.P4, itappears to me that no reason has been assigned by the ChiefCommissioner for rejection of the applications of the petitionereven though he has granted partial waiver of the interest leviedunder Section 234 A. He has not considered the case of thepetitioner for waiver of interest under Sections 234 B and 234 Cand no valid reason has been assigned by the ChiefCommissioner. Therefore, without expressing any opinion on themerits of the case, I set aside the impugned order and remit thematter to the Chief Commissioner of Income Tax, Kochi forre-consideration after giving an opportunity of hearing to thepetitioner. In order to avoid delay, the petitioner shall appearbefore the Chief Commissioner on a day fixed by him afterreceipt of notice from the Chief Commissioner and the ChiefCommissioner shall dispose of the case of the petitioner withinthree months from the date of receipt of the notice to him. Tillthe disposal of the application of the petitioner, the impugneddemand shall not be executed. The writ petition is disposed of as above. B.P. RAY, JUDGE