SHAMSUDEEN MOHAMMED V. DY.COMMISSIONER OF INCOME TAX

WP(C)/26140/2009

AI Insights

The petitioner, Shamsudeen Mohammed, challenged the non-consideration of his representation for a waiver of interest and penalty related to his income tax assessment for the year 2004-2005. Initially, certain expenses were disallowed in the assessment, but were later allowed by the first appellate authority. The Tribunal, however, sustained a 50% disallowance, which was upheld by the High Court. Subsequently, penalty orders were issued, which the petitioner appealed against. The court's judgment focused solely on the procedural aspect of the petitioner's request for a waiver of interest, directing the tax authorities to consider this request following a personal hearing.

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 755736 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 20-08-2014
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: S KUMAR; K S NAIR
• Keywords: Assessment Year 2004-2005; Income Tax; Interest Waiver; Penalty Waiver
• Section: 119; 234B; 234C; 220(2)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 20TH DAY OF AUGUST 2014/ 29TH SRAVANA, 1936 WP(C).No. 26140 of 2009 (J) ---------------------------- PETITIONER(S) : ---------------------- SHAMSUDEEN MOHAMMED, ARAFA, NLRA-52(A), NEERAZHI LANE, ULLOOR, THIRUVANANTHAPURAM. BY ADVS.SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.K.S.HARIHARAN NAIR RESPONDENT(S) : ------------------------ 1. DY.COMMISSIONER OF INCOME TAX, CIRCLE 1(2), KAWDIAR, THIRUVANANTHAPURAM-695 003. 2. COMMISSIONER OF INCOME TAX (APPEALS)-1, THIRUVANANTHAPURAM-695 003. 3. THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, KOCHI - 682 015. 4. THE JOINT COMMISSIONER OF INCOME TAX, THIRUVANANTHAPURAM-695 003. 5. TAX RECOVERY OFFICER-RANGE I, AAYAKAR BHAVAN, KAWDIAR, THIRUVANANTHAPURAM - 695 003. 6. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE -(2), THIRUVANANTHAPURAM - 695 003. 7. THE CHIEF COMMISSIONER OF INCOME TAX, THIRUVANANTHAPURAM - 695 003. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMV : 2 : WP(C).No. 26140 of 2009 (J) APPENDIX PETITIONER(S) EXHIBITS : EXT.P1 : COPY OF ASSESSMENT ORDER DATED 26.12.2006. EXT.P2 : COPY OF ORDER DATED 28.11.2008 OF THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH. EXT.P3 : COPY OF MODIFIED ORDER DATED 16.01.2009 OF THE ASSESSING AUTHORITY. EXT.P4 : COPY OF PENALTY NOTICE DATED 10.06.2009. EXT.P5 : COPY OF REPLY DATED 19.06.2009. EXT.P6 : COPY OF REPRESENTATION DATED 31.07.2009 FILED BEFORE THE 4TH RESPONDENT. EXT.P7 : COPY OF NOTICE DATED 13.07.2009 OF THE 5TH RESPONDENT. EXT.P8 : COPY OF THE ORDER DATED 16.09.2009 NO.AFTPM3721Q/TVM/2009 - 10. EXT.P9 : COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE COMMISSIONER OF INCOME TAX. EXT.P10(a) : COPY OF THE REPRESENTATION DATED 27.10.2009 FILED BY THE PETITIONER TO THE 7TH RESPONDENT. EXT.P10(b) : COPY OF THE REPRESENTATION DATED 27.10.2009 FILED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P10(c) : COPY OF THE REPRESENTATION DATED 27.10.2009 FILED BY THE PETITIONER TO THE 4TH RESPONDENT. RESPONDENTS EXHIBITS : NIL /TRUE COPY/ P.A.TO JUDGE AMV K.VINOD CHANDRAN, J. --------------------------------------- W.P.(C) No. 26140 of 2009 () ---------------------------------------- Dated this the 20th day of August, 2014 JUDGMENT Petitioner is aggrieved by the non-consideration of a representation filed in accordance with the notification issued under Section 119 of the Income Tax Act, 1961. 2.The short facts required for considering the case are that the petitioner's assessment for the year 2004- 2005 was concluded disallowing certain expenses. On the petitioner's appeal, the expenses claimed were entirely allowed by the first appellate authority. The revenue assailed the same before the Tribunal, which sustained 50% of the dis-allowance. The petitioner was unsuccessful in a revision before this Court. Subsequently penalty orders were also issued for the very same assessment year. The petitioner has filed Ext.P10A seeking waiver of the interest under Sections 220(2), 234B and 234C of the Income Tax Act. The petitioner also has sought for waiver of penalty in W.P.(C) No. 26140 of 2009 () 2 Ext.P10A. The penalty which was imposed as per Ext.P8 is under challenge in a properly instituted appeal evidenced by Ext.P9. Hence there is no question of consideration of waiver of penalty nor can such waiver of penalty be considered under Section 119. Hence, the representation has to be confined to the waiver of interest sought for by the petitioner. The 7th respondent, if in receipt of Ext.P10A, in its original, shall issue notice within a month of the receipt of certified copy of this judgment and after affording a personal hearing to the petitioner, dispose of the same. It is made clear that this Court has not considered the issue of waiver at all and has not gone into the merits of the case. The writ petition is disposed of. Sd/- K.VINOD CHANDRAN, JUDGE AMV/20/08/ "