Wp(C)/32440/2009 Of N.parameswaran v. The Commissionr Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 18TH DAY OF JANUARY 2012/28TH POUSHA 1933 WPC.No. 32440 of 2009 (Y) --------------------------------------- PETITIONER(S): ------------------------ N.PARAMESWARAN, KEEPANASSERY PUTHENMADHOM, VELLOORKUNNAM, MUVATTUPUZHA-686 673. BY ADVS.SRI.KMV.PANDALAI SMT.S.HEMALATHA RESPONDENT(S): --------------------------- 1. THE COMMISSIONER OF INCOME TAX, C.R.BUILDING, I.S.PRESS ROAD, COCHIN-18. 2. THE RECOVERY OFFICER, RANGE I, C.R.BUILDINGS, I.S.PRESS ROAD COCHIN-682 018. R1 & 2 BY SRI.JOSE JOSEPH, SC, INCOME TAX THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.32440/2009 Y APPENDIX PETITIONER'S EXHIBITS: P1:COPY OF THE PETITION FOR WAIVER OF INTEREST U/S.220(2A) FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DTD. 1/10/2003.BY THE PETITIONER BEFORE THE 1ST RESPONDENT DTD. 1/10/2003. P2:COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT ON 2/3/2007. P3:COPY OF THE ORDER DTD. 30/10/2007. P4:COPY OF THE WAIVER PETITION DTD. 24/03/08. P5:COPY OF THE ADDITIONAL EXPLANATION DTD. 4/07/2008 FILED BY THE PETITIONER.THE PETITIONER. P6:COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT ON 10/7/2008. P7:COPY OF THE LETTER DTD. 25/07/2008 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE K.VINOD CHANDRAN, J ---------------------------------------------------------- W.P.C.No.32440 of 2009 ---------------------------------------------------------- Dated this the 18th day of January, 2012 JUDGMENT The petitioner challenges Ext.P6 order refusing toinvoke the powers conferred on the first respondent forwaiver under Section 220 (2A) of the Income Tax Act. Thepetitioner was a stock broker and on the claim that he hadno sufficient income for the years 1990-91 and 1991-92, didnot file any return of income. For the assessment year1992-93, the petitioner filed returns however withoutnecessary annexures. In such circumstances, thedepartment was constrained to issue notice under Section148 for the years in which no return was filed. For thesubsequent years due to non co-operation of assessee,assessment was completed under Section 144 of theIncome Tax Act. The assessment as such is not the subjectof challenge in the above writ petition and the petitionerclaims only waiver of interest levied under Section 220 invoking the power conferred under Section 220 (2A). Thepetitioner's counsel contended that the petitioner's case isone which is fit for consideration under Section 220 (2A).The three conditions to be satisfied under the said Sectionare (i) genuine hardship for payment (ii) default of paymentor delay not being due to circumstances attributable to theassessee and (iii) assesse's co-operation in any inquiry orany proceedings for recovery. The counsel for the petitionerwould submit that the facts and circumstances of the casewould amply evidence the satisfaction of all the above threeconditions, thus entitling the case of the assessee to be onefit to be considered under Section 220 (2A). The counsel forthe Revenue would however contend otherwise and urge forthe dismissal of the Writ Petition as frivolous. 2. The assessee, who is the petitioner herein has challenged Ext.P6 order as one passed rejecting theinvocation of the powers under Section 220 (2A). I find that 2. The assessee, who is the petitioner herein has challenged Ext.P6 order as one passed rejecting theinvocation of the powers under Section 220 (2A). I find that the petitioner had approached the Commissioner of IncomeTax invoking powers under Section 220 (2A) of the Act withan earlier petition which was rejected by Ext.P2 finding thatthe petitioner has not paid the amounts demanded as taxand hence the petitioner cannot be said to have compliedwith the 3rd condition, namely the co-operation in anyproceedings for the recovery of tax due. The petitioner'scontention is that on such rejection, he had approached theChief Commissioner again and in the changedcircumstances of the payment having then been made, theChief Commissioner ought to have considered the prayer ofthe petitioner favourably. However, contrary to what issubmitted, I find that even the second application made bythe petitioner invoking both Section 190 (2) as also 220 (2A)of the Income Tax Act was considered by the ChiefCommissioner and the latter prayer was again rejected fornon co-operation evidenced by default in making payment. It was after two unsuccessful attempts that the petitioner againapproached the Commissioner of Income Tax by Ext.P5which was again rejected on the ground of non co-operationby Ext.P6. In my opinion, the power conferred under Section220 (2A) is not a power which could be invoked in arecurring manner on every change in circumstance. The firstapplication having been considered by the competentauthority and rejected by Ext.P1; there was no scope for anyfurther application for the very same relief being made beforethe Chief Commissioner or the Commissioner. Theapplications which resulted in Ext.P3 and P6 according tome, is incompetent. The Commissioner having onceexercised his discretion and found that one of the conditionscontemplated under section 220(2A) has not been satisfied,it is not for this Court to interfere with the same especially, incircumstance of the non cooperation having been found dueto default in payment. In the circumstances, the above writ petition is devoid of merit and is dismissed. K.VINOD CHANDRAN, JUDGE su