TMI Blog2013 (1) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... concession has been granted on account of the fact that there had been some delay on the part of the department in providing the copies of the documents. Therefore, this is a case where the assessee was only trying to point out the non-availability of records as a reason for not filing the returns in time. Returns were considered and Exts.P12 and P13 assessment orders were passed intimating the unaccounted transactions also. That being the situation, there will be no justification for this Court to extend the scope of judicial review to Ext.P15 order. No reason to find any illegality or arbitrariness in the said decision nor can it be stated to be unreasonable. This Court cannot sit in appeal against the said finding of fact by the Chief Commissioner. In the light of the above discussion, the writ petition fails and the same is dismissed. - WP(C).No. 5799 of 2008 (M) - - - Dated:- 3-12-2012 - A.M. Shaffique, J. Appellant Rep. by : Sri P. Balakrishnan, Adv, Sri K C Kiran Respondent Rep. by : Sri Jose Joseph, SC, Income tax Sri George K George, SC Income Tax JUDGEMENT This writ petition is filed challenging Ext.P16 order passed by the Chief Commissioner of Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h another demand by Income Tax Officer for filing returns by notice dated 12/07/2006 for which he had sent a reply wherein he again made a request to the Assistant Commissioner of Income Tax for providing copies of the documents. 5. It is stated that thereafter the documents were received and returns were filed on 03/10/2006 declaring a total loss for the assessment years. The Income Tax Department, after having verified the returns as per Exts.P12 and P13 orders assessed the petitioner and returned a total income of Rs.2,27,950/- in respect of assessment year 2001-'02 and Rs.4,80,110/- in respect of assessment year 2002-'03 and thereby assessing the tax payable and imposing interest under Section 234A as Rs.60,724/- in respect of assessment year 2001-02 and Rs.86,507/- in respect of 2002-'03. The imposition of interest under Section 234A was challenged by the petitioner by submitting Ext.P14 and P15 to the Chief Commissioner of Income Tax stating that the delay in filing was on account of not getting the copies of books of accounts in time though the Petitioner had requested for the same. This resulted in a common order being passed by the Chief Commissioner of Income Tax as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 29/06/2006. The applicable provision has been extracted in Ext.P16 order which reads as under: " It has also specified the class or classes of income in which the reduction or waiver of interest u/s 234A or 234B, or 234C can be considered, as follows: (a) Where, during in the course of search and seizure operations, books of account etc. were seized and the CCIT/DGIT concerned is satisfied on the facts and circumstances of the case, that the delay in furnishing return was for reasons beyond the control of the assessee, and is not attributable to him, x x x x x x x x (d) Where return of income could not be filed voluntarily by the assessee due to unavoidable circumstances and such return is filed by the assessee or his legal heirs without detection by the Assessing Officer." The above provision is made applicable only for giving waiver of interest under Section 234A. 9. According to the learned Standing Counsel, petitioner is not entitled for waiver of interest. Once the discretion has been exercised by the competent authority, judicial review is not possible. The learned Standing Counsel also relied upon judgments in Deputy Commissioner of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not what has been done in this case. The assessee requests the ADIT (Inv.) to release books of accounts and documents, when the filing of returns can be done without the originals. 6. The stand taken by it shows that it was trying to wriggle out of the situation. In the initial stages, the managing partner admitted stock outside the books of accounts. Later he submitted that some transactions had not been entered in the books, but did not give the details. 7. If the intention was to disclose the unaccounted transactions, evidence regarding some of which was impounded, and income thereon, the assessee could have done so atleast at the time of filing the return of income. This appears to have been not the intention as the returns were filed claiming loss only purportedly as per books of accounts. If the intention was only to admit the results as per transactions recorded in the books of accounts, as was done in the returns of income, the assessee could have focused on ascertaining from the investigation wing where the said records are and approached the ACIT (Central) for allowing to take copies of the same and the photo copying work of the documents could have been ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after more than two years. But the reasons stated by the Chief Commissioner would unequivocally indicate that initially the request was made to release the books of accounts and documents; then the returns were prepared even without the originals. The assessee had requested for copies of the books and documents only by 23/03/2004 which was later supplied after the alleged delay. But it is indicated that from the returns it was found that unaccounted transactions have been included, the same could have been done without verification of the records. In other words, though the assessee was requesting for the records it did not make any difference as the returns were not in terms with the documents produced and there were unaccounted transactions. This finding of fact by Chief Commissioner has resulted in not exercising the jurisdiction to waive interest completely. However, a small concession has been granted on account of the fact that there had been some delay on the part of the department in providing the copies of the documents. Therefore, this is a case where the assessee was only trying to point out the non-availability of records as a reason for not filing the returns in time. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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