ANTO NITTO V. THE COMMISSIONER OF INCOME TAX

WP(C)/14310/2009

AI Insights

The case involves Anto Nitto, the petitioner, who challenged an order (Ext.P3) by the Commissioner of Income Tax, Cochin, which rejected his application for a waiver of interest amounting to Rs.8,54,476. The interest was accrued due to non-payment of tax, and the petitioner's application for waiver was based on the grounds of genuine hardship, as he had no other business or source of income, and all his properties were under attachment. The court found that the reasons provided by the Commissioner for rejecting the waiver were not substantiated, particularly noting that the petitioner had no other business or source of income and that the interest liability was settled through compensation from the Corporation of Cochin.

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 755871 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 03-01-2013
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: K M V PANDALAI; HEMALATHA
• Keywords: Genuine hardship; Non-cooperation; Waiver of interest; Conditional waiver order; Installment facility
• Section: 220(2A)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC THURSDAY, THE 3RD DAY OF JANUARY 2013/13TH POUSHA 1934 WP(C).No. 14310 of 2009 (G) --------------------------- PETITIONER(S): ------------------------- ANTO NITTO, KALAPPURAKKAL HOUSE, EDACOCHIN, COCHIN 682 006. BY ADVS.SRI.KMV.PANDALAI SMTS.HEMALATHA RESPONDENT(S): --------------------------- 1. THE COMMISSIONER OF INCOME TAX, COCHIN, ERNAKULAM. 2. THE TAX RECOVERY OFFICER, ERNAKULAM. R1 & R2 BY ADV. SRI.JOSE JOSEPH, SC, INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.14310/2009 G APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF NOTICE IN FORM ITC P 16 DTD. 24/09/2008 ISSUED BY THE 2ND RESPONDENT. P2: COPY OF PETITION FOR WAIVER DTD. 5/11/2008 FILED BEFORE THE FIRST RESPONDENT. P3: COPY OF ORDER OF THE FIRST RESPONDENT DTD. 5/12/2008. P4: COPY OF NOTICE DTD. 21/11/2007 ISSUED BY THE SECOND RESPONDENT (THEN TAX RECOVERY OFFICER, ALWAYE). RESPONDENT'S EXHIBITS: R1(A): COPY OF THE LETTER RECEIVED FROM CORPORATION OF COCHIN NO.SYP2 2525/99 DTD. 29/10/2008. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J ........................................ W.P.(C).14310/2009 .............................................. Dated this the 3rd day of January, 2013 JUDGMENT Heard the learned counsel for the petitioner and the learned counsel for the respondents. 2. Petitioner challenges Ext.P3, an order passed by the 1st respondent on an application made by the petitioner for waiver of interest as provided under Section 220(2A) of the Income Tax Act, 1961. It is seen that by Ext.P2 application made by the petitioner for waiver, he requested the respondents to waive the interest liability of Rs.8,54,476/-. That application is seen rejected by Ext.P3 order. It is also seen from the pleadings that subsequently, the whole interest liability of the petitioner was satisfied by appropriating the amounts from out of Rs.18,06,402/- remitted by the Corporation of Cochin which was due to the petitioner in a land acquisition proceedings. W.P.(C).14310/09 2 3. In Ext.P3, mainly two reasons are stated. First reason stated for rejection of the petitioner's application is that the petitioner did not produce any proof that he had no other business or source of income. It is also stated that there has not been any co-operation extended to the Department during the recovery proceedings. 4. Insofar as the absence of any other business or source of income is concerned, first of all, respondents themselves have no case that the petitioner had any other business or source of income. It is also the admitted case of the respondents that the entire properties of the petitioner are under attachment and that the interest liability of the petitioner was satisfied from out of the compensation amount remitted by the Corporation of Cochin. These facts, in my view, prima facie substantiate the case of the W.P.(C).14310/09 3 petitioner that he had no business or source of income and that payment of interest as demanded, would cause genuine hardship. 5. Finding of non cooperation on the part of the petitioner is basically on the ground that the petitioner, as legal heir of K.J.Columbus and representing the firm M/s Ocean Fisheries, committed default in complying with the conditional waiver order and the instalment facility. The fact that these orders were not complied with, according to the petitioner, was for the reason that he had no source of money to comply with the same. In other words, his case is that there has not been any wilful default. This contention again, is at least, prima facie, proved by the fact that the entire properties of the petitioner was under attachment and that the entire liabilities were subsequently cleared by making appropriation of the compensation amount. W.P.(C).14310/09 4 Therefore, I am unable to uphold both the grounds relied on in Ext.P3 against the petitioner. 6. Learned counsel for the revenue contended that Ext.P3 order concerns only the interest liability of the petitioner and the fact that the interest liability has now been discharged by appropriating the compensation received from the Corporation of Cochin itself show that there is no genuine hardship. I am unable to agree. The fact that the liability has been discharged by itself will not indicate that there is no hardship. If the entire amount available has been appropriated by the revenue, that itself can give rise to a case of genuine hardship. 7. For these reasons, Ext.P3 cannot be sustained and therefore, is quashed. 1st respondent is directed to reconsider Ext.P2 application made by the petitioner with notice to him and pass fresh W.P.(C).14310/09 5 orders, in accordance with law. This shall be done within three months of receipt of a copy of this judgment. Writ petition is disposed of. Sd/- ANTONY DOMINIC, JUDGE mrcs /true copy/ sd/- P.A. To Judge "