M/S.Geejai Constructions, M.D.C.Centre, K.K.Road, Kottayam, rep. by its managing partner, Shri George Joseph Kondody V. The Assistant Commissioner of Income-Tax, Circle-I, Kottayam and The Commissioner of Income Tax, Trivandrum and The Chief Commissioner of Income Tax, Ernakulam and The Central Board of Direct Taxes, rep. by its Secretary, New Delhi

OP/21619/1999

AI Insights

The case involves M/S.Geejai Constructions, represented by its managing partner Shri George Joseph Kondody, challenging an order by the Commissioner of Income Tax, Trivandrum, which denied their application for waiver of interest and penalties imposed for the assessment years 1983-84 to 1986-87. The application for waiver was filed under Section 273A of the Income Tax Act, which allows for such waivers if the assessee cooperates in the inquiry and makes a full and true disclosure of income, among other conditions. The court's decision was based on the finding that the petitioner had not made any payment or arrangement for payment of the interest and penalties, nor had they complied with the conditions of the Kar Vivad Samadhan Scheme, which they had previously claimed but not availed.

• Counselvise Citation: [2007] 140 COUNSELVISE.COM (IT) 671241 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 28-11-2007
• Assessment Year: misc
• Other Referred Cases: P.A.Mohammed Abdul Khader & Co. v. Commissioner of Income Tax and Another (1978) 112 ITR 552
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: P K R MENON; GEORGE GEORGE
• Assessee Lawyers: C NAIR; DALE KURIEN
• Keywords: Assessment Order; Kar Vivad Samadhan Scheme; Penalty; Waiver of interest
• Section: 273A; 271(1)(a); 139(8); 217; 273(1)(b)

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR WEDNESDAY, THE 28TH NOVEMBER 2007 / 7TH AGRAHAYANA 1929 OP.No. 21619 of 1999(W) ----------------------- PETITIONER: ------------ M/S.GEEJAI CONSTRUCTIONS, M.D.C.CENTRE, K.K.ROAD, KOTTAYAM, REP. BY ITS MANAGING PARTNER, SHRI.GEORGE JOSEPH KONDODY. BY ADV. SRI.C.KOCHUNNY NAIR SRI.DALE P.KURIEN RESPONDENTS: ------------- 1. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-I, KOTTAYAM. 2. THE COMMISSIONER OF INCOME TAX, TRIVANDRUM. 3. THE CHIEF COMMISSIONER OF INCOME TAX, ERNAKULAM. 4. THE CENTRAL BOARD OF DIRECT TAXES, REP. BY ITS SECRETARY, NEW DELHI. BY ADV. SRI.P.K.R.MENON(SR.),SC FOR IT ADV. SRI.GEORGE K. GEORGE, SC THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28/11/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NOS.35644&38578/1999 IN OP NO.21619/1999 DISMISSED: 28.11.2007 SD/-(C.N.RAMACHANDRAN NAIR, JUDGE.) APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF ASSESSMENT ORDER DT.22.12.1988 FOR THE YEAR 1983-84. P2: .DO. DT.31.12.1987 .DO. 1984-85. P3: .DO. 1985-86. P4: .DO. DT.2.9.1988 1986-87. P5: TRUE COPY OF APPLICATION FOR WAIVER OF INTEREST DT.26.4.1989 FILED BY PETITIONER BEFORE THE COMMISSIONER OF INCOME TAX, TRIVANDRUM. P6: TRUE COPY OF PETITION FILED U/S.273A FOR WAIVER OF INTEREST AND PENALTY BY PETITIONER DT.10.10.94. P7: .DO. DT.30.11.94. P8: TRUE COPY OF LETTER DT.8.1.96 SENT BY PETITIONER TO R2. P9: .DO. DT.11.7.1994 .DO. P10: .TRUE COPY OF TELEGRAM DT.12.1.95 SENT BY PETITIONER TO R2. P11: TRUE COPY OF ORDER PASSED BY COMMISSIONER OF INCOME TAX, TRIVANDRUM U/S.273A OF THE IT ACT, DT.31.5.99. P12: TRUE COPY OF NOTICE DT.18.8.99 ISSUED BY INCOME TAX OFFICER, WARD I, KOTTAYAM. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR, J. .................................................................... O.P. No.21619 of 1999 .................................................................... Dated this the 28th day of November, 2007. JUDGMENT The petitioner is challenging Ext.P11 order whereunder the Commissioner of Income Tax rejected petitioner's application filed under Section 273A of the Income Tax Act for waiver of interest under Section 139(8) and Section 217 and penalty levied under Section 271(1)(a) and Section 273(1)(b) of the Act. 2. I heard counsel appearing for the petitioner and Standing Counsel appearing for the respondents. I have also gone through Ext.P11 order. Section 273A provides in sub-section (1) that waiver of interest and penalty can be granted only if the assessee has co-operated in the enquiry and made full and true disclosure of the income. Another important condition for waiver is payment of interest or penalty as the case may be, or making of satisfactory arrangement for payment. It is found in Ext.P11 that petitioner had not made any payment of interest or penalty or made any arrangement for payment of the said sum. Even though counsel submitted that petitioner has made arrangement for payment, there is nothing to indicate as to what was the arrangement made for payment. The demand is raised for the 2 assessment years 1983-84 to 1986-87 and the impugned order was passed 12 years after the last year for which demand was raised. The petitioner could have made the application after making payment or after making arrangement for payment or could have made the payment before disposal of the application. However, petitioner has no case that petitioner has complied with any of these conditions. Standing Counsel submitted in court that besides not making payment and not making any arrangement for payment, petitioner has even made claim for Kar Vivad Samadhan Scheme for payment which, though granted to the petitioner, was not availed by the petitioner. The petitioner himself produced proceedings under the Kar Vivad Samadhan Scheme vide Ext.P12 and it is settled position through various decisions of several courts including that of this court in P.A.MOHAMMED ABDUL KHADER & CO. V. COMMISSIONER OF INCOME TAX AND ANOTHER (1978) 112 ITR 552 that the assessee can claim waiver of interest only if conditions are satisfied. Since petitioner admittedly did not satisfy any of the conditions and the conditions are not satisfied even when the O.P. was filed, there is no justification to interfere with the impugned order. The O.P. is devoid of any merit and is dismissed. C.N.RAMACHANDRAN NAIR Judge pms "