N.PARAMESWARAN V. THE COMMISSIONR OF INCOME TAX

WP(C)/32440/2009

AI Insights

The case involves N. Parameswaran, a stock broker, who challenged the order of the Commissioner of Income Tax refusing to waive interest under Section 220(2A) of the Income Tax Act. The petitioner had not filed income returns for certain years, claiming insufficient income, and later filed incomplete returns. The tax department issued notices and completed assessments under Section 144 due to non-cooperation from the petitioner. The petitioner sought a waiver of interest, which was repeatedly denied due to non-cooperation in tax payment proceedings. The court found that the petitioner's repeated applications for waiver were incompetent as the initial decision had already been made, and thus, no further applications for the same relief were permissible.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 755958 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 18-01-2012
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: K M V PANDALAI; S HEMALATHA
• Keywords: Assessment; Income Tax; Non-cooperation; Stock broker; Waiver of interest
• Section: 148; 144; 220(2A); 190(2)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 18TH DAY OF JANUARY 2012/28TH POUSHA 1933 WPC.No. 32440 of 2009 (Y) --------------------------------------- PETITIONER(S): ------------------------ N.PARAMESWARAN, KEEPANASSERY PUTHENMADHOM, VELLOORKUNNAM, MUVATTUPUZHA-686 673. BY ADVS.SRI.KMV.PANDALAI SMT.S.HEMALATHA RESPONDENT(S): --------------------------- 1. THE COMMISSIONER OF INCOME TAX, C.R.BUILDING, I.S.PRESS ROAD, COCHIN-18. 2. THE RECOVERY OFFICER, RANGE I, C.R.BUILDINGS, I.S.PRESS ROAD COCHIN-682 018. R1 & 2 BY SRI.JOSE JOSEPH, SC, INCOME TAX THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.32440/2009 Y APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PETITION FOR WAIVER OF INTEREST U/S.220(2A) FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DTD. 1/10/2003. P2: COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT ON 2/3/2007. P3: COPY OF THE ORDER DTD. 30/10/2007. P4: COPY OF THE WAIVER PETITION DTD. 24/03/08. P5: COPY OF THE ADDITIONAL EXPLANATION DTD. 4/07/2008 FILED BY THE PETITIONER. P6: COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT ON 10/7/2008. P7: COPY OF THE LETTER DTD. 25/07/2008 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss K.VINOD CHANDRAN, J ---------------------------------------------------------- W.P.C.No.32440 of 2009 ---------------------------------------------------------- Dated this the 18th day of January, 2012 JUDGMENT The petitioner challenges Ext.P6 order refusing to invoke the powers conferred on the first respondent for waiver under Section 220 (2A) of the Income Tax Act. The petitioner was a stock broker and on the claim that he had no sufficient income for the years 1990-91 and 1991-92, did not file any return of income. For the assessment year 1992-93, the petitioner filed returns however without necessary annexures. In such circumstances, the department was constrained to issue notice under Section 148 for the years in which no return was filed. For the subsequent years due to non co-operation of assessee, assessment was completed under Section 144 of the Income Tax Act. The assessment as such is not the subject of challenge in the above writ petition and the petitioner claims only waiver of interest levied under Section 220 W.P.C.No.32440 of 2009 2 invoking the power conferred under Section 220 (2A). The petitioner's counsel contended that the petitioner's case is one which is fit for consideration under Section 220 (2A). The three conditions to be satisfied under the said Section are (i) genuine hardship for payment (ii) default of payment or delay not being due to circumstances attributable to the assessee and (iii) assesse's co-operation in any inquiry or any proceedings for recovery. The counsel for the petitioner would submit that the facts and circumstances of the case would amply evidence the satisfaction of all the above three conditions, thus entitling the case of the assessee to be one fit to be considered under Section 220 (2A). The counsel for the Revenue would however contend otherwise and urge for the dismissal of the Writ Petition as frivolous. 2. The assessee, who is the petitioner herein has challenged Ext.P6 order as one passed rejecting the invocation of the powers under Section 220 (2A). I find that W.P.C.No.32440 of 2009 3 the petitioner had approached the Commissioner of Income Tax invoking powers under Section 220 (2A) of the Act with an earlier petition which was rejected by Ext.P2 finding that the petitioner has not paid the amounts demanded as tax and hence the petitioner cannot be said to have complied with the 3rd condition, namely the co-operation in any proceedings for the recovery of tax due. The petitioner's contention is that on such rejection, he had approached the Chief Commissioner again and in the changed circumstances of the payment having then been made, the Chief Commissioner ought to have considered the prayer of the petitioner favourably. However, contrary to what is submitted, I find that even the second application made by the petitioner invoking both Section 190 (2) as also 220 (2A) of the Income Tax Act was considered by the Chief Commissioner and the latter prayer was again rejected for non co-operation evidenced by default in making payment. It W.P.C.No.32440 of 2009 4 was after two unsuccessful attempts that the petitioner again approached the Commissioner of Income Tax by Ext.P5 which was again rejected on the ground of non co-operation by Ext.P6. In my opinion, the power conferred under Section 220 (2A) is not a power which could be invoked in a recurring manner on every change in circumstance. The first application having been considered by the competent authority and rejected by Ext.P1; there was no scope for any further application for the very same relief being made before the Chief Commissioner or the Commissioner. The applications which resulted in Ext.P3 and P6 according to me, is incompetent. The Commissioner having once exercised his discretion and found that one of the conditions contemplated under section 220(2A) has not been satisfied, it is not for this Court to interfere with the same especially, in circumstance of the non cooperation having been found due to default in payment. W.P.C.No.32440 of 2009 5 In the circumstances, the above writ petition is devoid of merit and is dismissed. K.VINOD CHANDRAN, JUDGE su "