Wp(C)/36456/2005 Of M/S.texmaster Productions Talap, Kannur v. The Chief Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC WEDNESDAY, THE 4TH DAY OF JANUARY 2012/14TH POUSHA 1933 WPC.No. 36456 of 2005 (M) ========================= PETITIONER =========== M/S.TEXMASTER PRODUCTIONS, TALAP, KANNUR REPRESENTED BY SHRI.K.NARAYANAN MANAGING PARTNER. BY ADV.SRI.T.M.SREEDHARAN RESPONDENTS ============= 1 THE CHIEF COMMISSIONER OF INCOME TAX, CENTRAL REVENUE BUILDING I.S.PRESS ROAD, COCHIN-682 018. 2 THE INCOME TAX OFFICER, WARD-I, KANNUR. BY ADVS. SRI.JOSE JOSEPH, SC, FOR INCOME TAX SRI.GEORGE K. GEORGE, SC FOR IT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.No. 36456 of 2005 (M) APPENDIX PETITIONER'S EXHIBITS: P1;TRUE COPY OF THE INTIMATION U/S. 143(1) (a) DATED 22.3.1993 ISSUED BY THE2ND RESPONDENT.2ND RESPONDENT. P2:TRUE COPY OF THE ASSESSMENT RODER DATED 22.3.1994 PASSED BY THE2ND RESPONDENT.2ND RESPONDENT. P3:TRUE COPY OF THE ORDER DATED 11.01.1996 PASSED BY THE 2NDRESPONDENT.RESPONDENT. P4:TRUE COPY OF THE APPLICATION FOR WAIVER OF INTEREST DATED 14.1.2003FOR THE YEAR 1991-92 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.FOR THE YEAR 1991-92 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. P5:TRUE COPY OF THE ORDER U/S. 119(2)(a) DATED 27.6.2005 ISSUED BY THE 1STRESPONDENT.RESPONDENT. P6:TRUE COPY OF THE ORDER U/S. 220(2A) DATED 27.6.2005 ISSUED BY THE 1ST RESPONDENT.RESPONDENT. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// Scl. PA TO JUDGE ANTONY DOMINIC, J.------------------------------------------ WP(C) NO. 36456 OF 2005------------------------------------------Dated this the 4[th] day of January, 2012 J U D G M E N T Exts.P5 and P6 orders are challenged by the assessee. Ext.P5 is an order passed by the 1[st] respondent rejecting the application made by the petitioner for waiver of interest, levied under Section 234A, B and C of the Income Tax Act. Ext.P6 is yet another one issued by the 1[st] respondent rejecting an application made by the petitioner for waiver of interest under Section 220(2) of the Income Tax Act. 2.Ext.P5 order is dealt with the claim of the petitioner for waiver of interest levied under Section 234A, B and C of the Income Tax Act. Admittedly, there is no provision in the Act, providing for waiver of such interest. However, waiver is permissible only in terms of the WP(C) NO. 36456 OF 2005 notification dated 23.05.1996 issued by the Board. This notification provides the circumstances in which such waiver is permissible and the circumstance that is relied on by the assessee for waiver is that contained in Clause(e) which says that where the return of income could not be filed by the assessee due to unavoidable circumstances and it was later filed voluntarily without detection by the Assessing Officer. In this order, it is found by the 1st respondent that even though the petitioner claimed that the delay in filing the return and nonpayment were due to unavoidable circumstances, no mention is made of such circumstances justifying the request for waiver. 3.The circumstances justifying the delay in payment of tax, are factual matters which are to be pleaded and established by the assessee. Ext.P4 is the application made by the assessee for waiver of interest. In Ext.P4 also apart from repeatedly stating that default has occurred for WP(C) NO. 36456 OF 2005 reasons due to unavoidable circumstances, no details thereof have been furnished and this factual issue was not established before the 1st respondent. In such circumstances, denial of the request for waiver of interest cannot be said to be against the provisions of the notification mentioned above. If that be so, Ext.P5 order of the 1st respondent deserves to be upheld and I do so. 3.The circumstances justifying the delay in payment of tax, are factual matters which are to be pleaded and established by the assessee. Ext.P4 is the application made by the assessee for waiver of interest. In Ext.P4 also apart from repeatedly stating that default has occurred for WP(C) NO. 36456 OF 2005 reasons due to unavoidable circumstances, no details thereof have been furnished and this factual issue was not established before the 1st respondent. In such circumstances, denial of the request for waiver of interest cannot be said to be against the provisions of the notification mentioned above. If that be so, Ext.P5 order of the 1st respondent deserves to be upheld and I do so. 4.In so far as Ext.P6, request for waiver of interest levied under Section 220(2) of the Income Tax Act is concerned, Section 220(2)(A) provides the circumstances, which are to be established by the assessee for claiming waiver. As held by this Court in GTN Textile Ltd. v/s. Dy. Commissioner of Income Tax & another (217 ITR 653) all the three circumstances are cumulative in nature and are to be established by the assessee. Here again, apart from the pleading that the nonpayment of tax was due to reasons beyond the control of the assessee, the assessee WP(C) NO. 36456 OF 2005 ..4.. has not established this factual question. Further the ingredients of the other conditions specified in Section 220(2)(A) also are not established. Therefore, the finding to that effect rendered by the 1st respondent in Ext.P6 order cannot be said to be illegal. 5.In the result, I do not find any merit in the writ petition. Hence this writ petition is dismissed. ANTONY DOMINIC, JUDGE bka/-