MOIDU'S MEDICARE PVT.LTD V. ASST.COMMISSIONER OF INCOME TAX,CALICUT

WP(C)/29247/2007

AI Insights

The case involves Moidu's Medicare (P) Ltd., represented by its managing director, Dr. K. Moidu, who filed a writ petition against the Assistant Commissioner of Income Tax, Circle 1(1), Calicut, and other tax authorities. The petitioner sought to quash an order imposing interest under Sections 234A, 234B, and 234C of the Income Tax Act, 1961, due to delays in filing tax returns for the assessment years 1994-95 and 1995-96, which were attributed to a search operation under Section 132 of the Income Tax Act at the petitioner's premises. The court found that the Chief Commissioner had not provided valid reasons for not waiving the interest under Sections 234B and 234C, leading to the decision to remit the matter for re-consideration.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 761383 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 07-09-2012
• Assessment Year: misc
• Laws Referred To: Income Tax Act 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: P K R MENON; GEORGE K GEORGE
• Assessee Lawyers: MILLU DANDAPANI
• Keywords: Delay in filing; Income tax assessment; Interest recovery; Writ of Certiorari; Writ of Mandamus
• Section: 132; 234B; 234A; 234C; 119(2)(a)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE B.P.RAY FRIDAY, THE 7TH DAY OF SEPTEMBER 2012/16TH BHADRA 1934 WP(C).No. 29247 of 2007 (F) --------------------------- PETITIONER(S): ------------- MOIDU'S MEDICARE(P)LTD., NATIONAL HOSPITAL, INDIRA GANDHI ROAD CALICUT-673001., REPRESENTED BY ITS MANAGING DIRECTOR, DR.K.MOIDU. BY ADV. SRI.MILLU DANDAPANI RESPONDENT(S): -------------- 1. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1(1), CALICUT. 2. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, CALICUT. 3. THE CHIEF COMMISSIONER OF INCOME TAX, ERNAKULAM, COCHIN-682018. BY ADV. SRI.P.K.R.MENON,SR.COUNSEL,GOI(TAXES) BY ADV. SRI.GEORGE K. GEORGE, SC FOR IT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SU/- WP(C).No. 29247 of 2007 (F) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF ORDER DATED 01-08-2002 ISSUED BY FIRST RESPONDENT. P1(A): COPY OF ORDER DATED 5-7-1999 ISSUED BY 2ND RESPONDENT. P2: COPY OF WRITTEN SUBMISSION DATED 19-5-2000 SUBMITTED BY PETITIONER BEFORE THE 3RD RESPONDENT. P2(A) :COPY OF WRITTEN SUBMISSION DATED 19-5-2000 SUBMITTED BY PETITIONER BEFORE THE 3RD RESPONDENT. P3: COPY OF LETTER DATED 19-09-2006 SUBMITTED BY PETITIONER BEFORE 3RD RESPONDENT. P3(A): COPY OF PETITION DATED 19-11-2006 SUBMITTED BY PETITIONER BEFORE 3RD RESPONDENT. P4: COPY OF ORDER DATED 25-9-2006 ISSUED BY 3RD RESPONDENT. P5: COPY OF ORDER NO.F400/234-95-IT (B) DATED 23-05-1996 SUBMITTED BY PETITIONER BEFORE 3RD RESPONDENT. P6: COPY OF THE ORDER NO.F 400/129/2002-IT(B) DATED 26-06-2006. RESPONDENTS' EXHIBITS: NIL. /TRUE COPY/ P.A. TO JUDGE SU/- B.P. RAY, J. - - - - - - - - - - - - - - - - - W.P.(C).No.29247 of 2007 - - - - - - - - - - - - - - - - Dated this the 07th day of September, 2012. JUDGMENT Heard the learned counsel Mr.Millu Dandapani for the petitioner and the leaned senior standing counsel Mr.P.K.R.Menon for the respondents. The petitioner has filed this writ petition with the following prayers: “i) call for the records leading to issue of Ext.P4 and quash the same by issuing a Writ of Certiorari or any other appropriate writ or order or direction. ii) declare that the respondents are not entitled to initiate any steps to recover interest u/ss 234A, 234B and 234C of the Income Tax Act 1961 as notified in Ext.P1. iii) issue a writ of mandamus or any other appropriate writ or order or direction, commanding the respondents not to initiate any steps to recover interest charged u/ss 234A, 234B, 234C as notified in Ext.P1.” 2. Petitioner is an assessee under the Income Tax Act 1961, under the jurisdiction of the Assistant Commissioner of Income Tax, Circle 1 (1), Calicut, 1st respondent herein. In respect of assessment for Assessment year 1994-95, the return was due to be filed on 30-11-1994. Petitioner filed return declaring the total income of Rs.29,91,700/- on 30-04-1996. In respect of assessment for assessment year 1995-96, return of income was due to be filed on 30-11-1995. Petitioner filed return declaring the total income of Rs.9,41,550/- on W.P.(C).No.29247 of 2007 2 29-11-1996. Subsequently, the revised return was filed on 16- 07-1997 declaring income of Rs.12,49,660/-. 3. Petitioner's case is that there was a search under Section 132 of Income Tax Act in the premises of petitioner and residential premises of their directors during the period from 25-07-1994 to 01-08-1994. At the time of search, latest income tax return filed by petitioner was for the assessment year 1993-94. This return was filed on 05-05-1995 declaring the income at Rs.1,59,320/-. Preparation of accounts and audit of accounts was, therefore, got delayed. Therefore, there was a delay of 18 months in respect of assessment year 1994-95 and 12 months in respect of assessment year 1995-96 in filing the returns. 4. As per Exts.P1 and P1(a) orders 1st and 2nd respondents have imposed interest on the petitioner as provided u/s 234 A, 234 B and 234 C of the Income Tax Act. Petitioner filed petitions u/s.119 (2) (a) of the Act dated 19-05-2000 for waiver of interest before the 3rd respondent as per Exts.P2 and P2(a). Exts.P2 and P2(a) petitions were pending before 2nd respondent from 2000 onwards. The cases were listed and taken up only in 2006. Before hearing, the petitioner submitted Exts.P3 and P3(a) written submissions before the 3rd respondent. W.P.(C).No.29247 of 2007 3 5. The application of the petitioner was disposed vide Ext.P4 order. On perusal of the impugned order Ext.P4, it appears to me that no reason has been assigned by the Chief Commissioner for rejection of the applications of the petitioner even though he has granted partial waiver of the interest levied under Section 234 A. He has not considered the case of the petitioner for waiver of interest under Sections 234 B and 234 C and no valid reason has been assigned by the Chief Commissioner. Therefore, without expressing any opinion on the merits of the case, I set aside the impugned order and remit the matter to the Chief Commissioner of Income Tax, Kochi for re-consideration after giving an opportunity of hearing to the petitioner. In order to avoid delay, the petitioner shall appear before the Chief Commissioner on a day fixed by him after receipt of notice from the Chief Commissioner and the Chief Commissioner shall dispose of the case of the petitioner within three months from the date of receipt of the notice to him. Till the disposal of the application of the petitioner, the impugned demand shall not be executed. The writ petition is disposed of as above. B.P. RAY, JUDGE su/- "