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2023 (2) TMI 645 - HC - Income TaxWaiver of interest u/s 220 (2A) - declared income of the petitioner included income of his minor son and the petitioner also claimed credit of prepaid taxes - demand raised non considering the payment of advance tax paid by the petitioner for the same income in the PAN number of his minor son - first respondent has granted only partial waiver of interest viz., 20% and has directed the petitioner to pay the balance 80% - HELD THAT:- In the case on hand, excepting for stating that the assessee had not approached the AO for rectification with regard to shortfall of credit, instead a separate return in the hands of the minor son was filed which resulted in total refund (including interest under Section 244A) which compelled the respondents to pay an excess refund to the petitioner, the contentions of the petitioner as raised in the petitions filed under Section 220 (2A) of the Income Tax Act both dated 25.02.2021 have not been considered. The petitioner has certainly suffered genuine hardship and for no fault of his, interest cannot be levied under Section 220 (2) when the advance taxes were infact paid on time though mistakenly in the petitioner's minor son's PAN number. It is also not the case of the respondents that the petitioner did not cooperate in any enquiry relating to the assessment or any proceedings for the recovery of amount due from him. The first respondent under the impugned order has granted partial waiver of interest to the petitioner at 20% without giving any reason as to how they arrived at that rate. When the first respondent has granted partial waiver at 20%, this Court is of the considered view that too when there is no finding given by the first respondent under the impugned orders that the petitioner has not satisfied the three conditions required for waiver of interest under Section 220 (2A) viz., a) payment of such amount has caused or would cause genuine hardship to the assessee; b) default in the payment of the amount on which interest was payable under the said Sub-Section was due to circumstances beyond the control of the assessee; and c) the assessee has not cooperated in any inquiry relating to the assessment or any proceeding for the recovery of any amount due from him; the first respondent ought to have granted full waiver of the interest to the petitioner, but, instead, erroneously has granted only 20% waiver by passing non speaking orders. This Court will also have to take note of the fact that the petitioner has already got the benefit of interest while the respondents had refunded a sum of Rs.3,59,300/- and Rs.1,59,500/- under Section 244A of the Income Tax Act. Certainly that amount has to be adjusted from and out of the waiver of interest under Section 220(2A) of the Income Tax Act. The petitioner had sought for waiver under Section 220 (2A) of the Income Tax Act which has been partially allowed by granting 20% waiver to the petitioner under the impugned orders and the balance 80% amount - This Writ Petition is partly allowed by modifying the impugned order by granting full waiver of interest to the petitioner under Section 220 (2A) and by directing the petitioner to pay a sum which he has received towards refund of interest under Section 244A of the Income Tax Act from the respondents within a period of four weeks from the date of receipt of a copy of this order.
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