ARUN SUNNY V. CHIEF COMMISSIONER OF INCOME TAX

RP/143/2016

AI Insights

The case involves Arun Sunny, the review petitioner, contesting a decision related to the waiver of interest on unpaid advance tax for the accounting year 2005-06. The Chief Commissioner of Income Tax had rejected the waiver application based on the interpretation of a CBDT circular. The single judge's decision, which affirmed the Chief Commissioner's decision, was challenged in the Division Bench. The review was prompted by the need to reconsider the implications of a Gujarat High Court decision (Bhanuben Panchal's case) that was not previously considered, which could potentially affect the outcome of the case.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 699536 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 06-02-2017
• Assessment Year: misc
• Other Referred Cases: Chief Commissioner of Income Tax and another v. Jimmichan M.Varicatt, Bhanuben Panchal and Chandrikaben Panchal v. Chief Commissioner of Income Tax
• Laws Referred To: Income Tax Act, CBDT circular
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: S NAYAR
• Keywords: Advance tax; Assessment Order; Income Tax; Jurisdiction; Review petition; Waiver of interest
• Section: 234B

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN MONDAY, THE 6TH DAY OF FEBRUARY 2017/17TH MAGHA, 1938 RP.No. 143 of 2016 IN WA.1269/2014 --------------------------------------- AGAINST THE JUDGMENT IN WA.1269/2014 of HIGH COURT OF KERALA DATED 14-01-2016 REVIEW PETITIONER/APPELLANT: -------------------------------- ARUN SUNNY CHIRAKKAL HOUSE, XL/676, CHITTUR ROAD KOCHI-682 011 BY ADV. SRI.S.VIJAYAN NAYAR RESPONDENTS/RESPONDENTS: ---------------------------- 1. CHIEF COMMISSIONER OF INCOME TAX C.R. BUILDING, I.S.PRESS ROAD, KOCHI-682 018 2. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 2(1), CENTRAL REVENUE BUILDING, I.S. PRESS ROAD KOCHI-682 018 BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 06-02-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ THOTTATHIL B.RADHAKRISHNAN & ANU SIVARAMAN, JJ. ------------------------------------------------------ R.P.No.143 of 2016 in W.A.No.1269 of 2014 ------------------------------------------------------ Dated this the 6th day of February, 2017 O R D E R Thottathil B.Radhakrishnan, J. 1.This review petition is addressed against the judgment rendered by the Division Bench in W.A.No.1269 of 2014 on 14.1.2016, which arose from the judgment of the learned single Judge in W.P.(C)No.21314 of 2011. 2.Though different grounds are pleaded in the application seeking review and many of them have been pressed into service by the learned counsel appearing for the review petitioner, we see that few questions are of importance. The relevant accounting year ended on 31.3.2006 leading to Ext.P1 assessment order for the year 2006-07. The question is whether the 1st respondent Chief Commissioner of Income Tax would have been within the jurisdiction to act in terms of the applicable CBDT circular and exercise discretion and waive R.P.143/16 in W.A.1269/14 :-2-: either the whole or in part of the interest that would be payable on unpaid portion of advance tax which had accrued during the accounting year 2005-06. Through the decision of the 1st respondent, a choice has been made inasmuch as it is Ext.P3(b) that would apply and relief could have been granted only if the matter fell within paragraph 2(c) thereof. It was held that the case of the petitioner/assessee does not fall under that paragraph and therefore, the application seeking waiver of interest charged under Section 234B of the Income Tax Act was rejected. 3.The learned single Judge affirmed the decision of the Chief Commissioner preferring to follow, apparently, Chief Commissioner of Income Tax and another v. Jimmichan M.Varicatt ([2011] 330 ITR 338(Ker)) and noticing that the Gujarat High Court in Bhanuben Panchal and Chandrikaben Panchal v. Chief Commissioner of Income Tax ([2004] 269 ITR 27 (Guj.)) had considered a similar issue but had given a different interpretation to clause (e) of the circular. The learned single Judge treated Bhanuben R.P.143/16 in W.A.1269/14 :-3-: Panchal's case (supra) as decided on the facts of that case and therefore preferred to go by Jimmichan's case (supra). 4.There is serious conflict of submissions as between the petitioner and the learned counsel appearing for the Revenue as to the effect of Bhanuben Panchal's case (supra), though the learned counsel for the petitioner would also say that even Jimmichan's case is in favour of his client. 5.Be that as it may, reverting to paragraph 6 of the judgment of the learned single Judge, we think that, we, in the Division Bench, had failed to note the decision in Bhanuben Panchal's case (supra), though even according to the learned single Judge, it gives a different interpretation to clause (e) of the circular dated 23.5.1996. Therefore, notwithstanding whatever has been stated in the judgment sought to be reviewed, even as regards the effect of the statutory provisions, particularly those under which CBDT circulars are issued, we think that ends of justice require that the judgment rendered on 14.1.2016 in W.A.No.1269 of 2014 has to be recalled in view of the afore- R.P.143/16 in W.A.1269/14 :-4-: noted error apparent on the face of the record of that judgment; thereby paving way for a rehearing of W.A.No.1269 of 2014. 6.For the aforesaid reasons, this application seeking review is allowed on the ground that the said judgment could not have been concluded without a consideration of the contents of Bhanuben Panchal's case (supra) and also certain other attendant propositions which may be addressed. In the result, this application is allowed, reviewing and recalling the judgment dated 14.1.2016 in W.A.No.1269 of 2014. The office will list W.A.No.1269 of 2014 for consideration de novo in terms of roster. Sd/- THOTTATHIL B.RADHAKRISHNAN JUDGE Sd/- ANU SIVARAMAN JUDGE ami/7.2.17 //True copy// P.A.to Judge "