TMI Blog2011 (9) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... ated:- 9-9-2011 - MR. JUSTICE SANJIV KHANNA, J. For Appellant: Mr. Bharat Beriwal, Adv. For Respondents: Mr. Sanjeev Rajpal, Adv. SANJIV KHANNA, J. Petitioner No. 1, M/s Jewellers Om Prakash is a partnership firm, of which the petitioner No. 2 Mr. Om Prakash Bhola is a partner. By this writ petition, they have impugned orders dated 6th May, 2009 and 24th August, 2009, passed by the Chief Commissioner of Income Tax, Delhi VIII, respondent No. 1 herein, rejecting their request for waiver of interest under Section 220(2A) of the Income Tax Act, 1961 (Act, for short). They have also prayed for return of jewellery which was valued at Rs. 4,49,255/- at the time of seizure on 28th October, 1992. As far as second prayer is concerned, the respondents along with the counter affidavit have filed the order dated 30th September, 2010, passed by respondent No. 1, directing the Additional CIT, Range-20 to take steps for release of jewellery seized on 28/29th October, 1992, valued at Rs.4,49,255/-. To this extent, the writ petition is rendered infructuous. Keeping in view the delay and laches and to ensure immediate and timely return of jewellery suitable directions have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the CIT (Appeals), assessing the total income of the petitioner No. 1 at Rs. 13,01,389/-, an order under Section 143(3)/250 was passed by the Assessing Officer on 28th July, 1997. The computation sheet shows that the total tax payable on the aforesaid income was Rs.5,83,023/- and in addition the petitioner was liable to pay interest under Section 234A, 234B 234C of Rs.3,16,986/- and interest under Section 220(2) w.e.f. May, 1996 to July, 1997 of Rs.84,224/-. The said computation sheet further records that the tax demand of Rs.5,25,679/- had already been paid, leaving a balance of Rs.57,344/- (Rs.5,83,023 less Rs.5,25,679). Interest of Rs.3,16,986/- under Sections 234A, B and C and interest of Rs.84,224/- under Section 220(2) was payable. As on 28th July, 1997, an amount of Rs.4,58,554/- was payable after adjusting payment of Rs.5,25,679/- which was already paid. 7. As per the petitioner No.1 and it is accepted by the Revenue that the following payments have been made by the petitioner No. 1 for the assessment year 1993-94. S.No. Date of Payment Amount 1. 20/08/1996 Rs.10,00,000/- 2. 10/09/1996 Rs.10,00,000/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008 and 28th April, 2009, calling upon the Revenue to decide the petition under Section 220(2) of the Act, as the same had not been considered and decided. Reference was also made to Section 154 of the Act which entitles income tax authorities to rectify an order in case there is an error or mistake which is apparent. 13. Respondent No. 1 vide order dated 6th May, 2009, dismissed the application under Section 220(2) for waiver of interest, inter-alia, recording as under:- It may be mentioned that the amount of Rs.7,04,175/- was determined as interest payable u/s 220(2) and was paid by the assessee on 28.3.2007. In this regard, as per the provisions of section 220(2A) of Income Tax Act, 1961, the Chief Commissioner or Commissioner may reduce or waive the amount of interest paid or payable by an assessee u/s 220(2) if he is satisfied that i) payment of such amount has caused or would cause genuine hardship to the assessee; ii) default in the payment of the amount on which interest has been paid or was payable under the said sub-section was due to circumstances beyond the control of the assessee; and iii) the assessee has co-operated in any inquiry relating to the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actor was appreciated and accepted by the CIT (Appeals) in his order dated 22nd October, 2002, reducing the penalty under Section 271(1)(c) and accepting the case of petitioner No. 1 for voluntary surrender under Explanation 5 to Section 271(1). (c) The CIT (Appeals) has held that the assessee had cooperated in the assessment proceedings. (d) The assessee did not have funds and as per declared/returned incomes for the subsequent assessment years; there was loss or marginal income which was not sufficient to clear the tax demand. (e) There was delay and fault on the part of the department in returning jewellery which was retained by them for a period of 14 years. (f) The department had remained quiet after payments were made in 1996, 1997 and 1998 till 2002, and after the petition for waiver was made under Section 220(2). The petition for waiver of interest was not decided, for long; wrongly treated as withdrawn by an undated order; and thereafter the petitioner No. 1 was compelled to file repeated applications from 2006 till 2009 when the order dated 6th May, 2009 was passed. There has been delay and inaction on the part of the Revenue. (g) The total tax liability for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own principle, namely, a person cannot take advantage of his own wrong, may also have to be borne in mind. The said principle, it is conceded, has not been applied by the courts below in this case, but we may take note of a few precedents operating in the field to highlight the aforementioned proposition of law. [See Priyanka Overseas (P) Ltd. v. Union of India (SCC at pp. 122-23, para 39); Union of India v. Major General Madan Lal Yadav (Retd.) (SCC at p. 142, paras 28-29); Ashok Kapil v. Sana Ullah(SCC at p. 345, para 7); Sushil Kumar v. Rakesh Kumar (SCC at p. 692, para 65, first sentence); Kusheshwar Prasad Singh v. State of Bihar (SCC at pp. 451-52, paras 13-14 and 16).] 19. Thus, the said principle, in our opinion, should be applied even in a case of this nature. A statutory authority despite receipt of such a request could not have kept mum. It should have taken some action. It should have responded to the prayer of the appellant. However, another principle should also be borne in mind, namely, that a statutory authority must act within the four corners of the statute. Indisputably, the Commissioner has the discretion not to accede to the request of the assessee, but tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner No. 1 was retained and kept by the Revenue. The provisions of Section 132B were not followed. The aforesaid quantum/amount also takes into account the inconvenience and harassment suffered by the petitioner No. 1 on account of wrongful retention of jewellery by the Revenue and failure to pass any order under the said Section. No damages or compensation is being separately awarded. It may be noticed here that the CIT (Appeals) in his order dated 22nd October, 2002, had clearly stated that the assessee had agreed to sale of the jewellery for recovery of the arrears and, therefore, the department should have sold the jewellery to recover the tax. We have also kept in mind that the value of the jewellery has gone up due to passage of time and due to increase of value of gold. 19. The aforesaid amount of Rs.2,25,000/- should be waived or refunded to petitioner No. 1 within a period of six weeks from the date a copy of this order is communicated/received in their office. In case the payment is not made within six weeks, the petitioner No. 1 will be entitled to interest @ 10% on the said amount till the payment is made from the date of this order. Similarly, jewellery if not alr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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