TMI Blog2011 (12) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... ef Commissioner granting waiver was definitely a misconception or an error in interpreting the notification, which could be rectified under Section 154 - Held that: the fundamental error committed in the order dated 26.11.1999 was rectified - Writ is dismissed - W.A. NOS. 1972, 2007 & 2008 OF 2010 - - - Dated:- 23-12-2011 - C.N. RAMACHANDRAN NAIR AND K. VINOD CHANDRAN, JJ. Harisankar V. Menon, Smt. Meera V. Menon and Mahesh V. Menon for the Appellant. Jose Joseph for the Respondent. JUDGMENT K. Vinod Chandran, J. The short question canvassed in the above Writ Appeals is the scope of the power under Section 154 of the Income Tax Act (for short "the Act") to rectify any mistake apparent from the record. 2. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respectively as Exhibit P8, P7 and P4 in the writ petitions waived the interest in full. The Chief Commissioner in the said order found that the hardship pleaded by the assessee as also the filing of returns and payment of taxes would entitle the assessee to waiver of interest as claimed by him. 3. However, later notice under Section 154 was issued on 26.12.2003 proposing rectification of the order granting waiver on the ground that the assessee was not entitled to be considered for such waiver on account of non-satisfaction of the conditions in the notification. The proposal made was confirmed by the Chief Commissioner after hearing the assessee on the ground that the assessee did not fall within the terms of the notification for the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itute an adjudication of an issue and can only be deemed to be a mere change of opinion which is beyond the scope of rectification under Section 154. The learned counsel would also take us through the decision of the Hon'ble Supreme Court in Deva Metal Powders (P.) Ltd. v. Commissioner, Trade Tax U.P. , [2007] 10 VST 751, to buttress his arguments. 5. We have given anxious consideration to the facts of the case, the law on the subject as also the impugned judgment of the learned Single Judge. Obviously there can be no dispute that the earlier orders of the Chief Commissioner, which were rectified by orders dated 26.11.1999, 22.10.1999 and 26.11.1999 respectively, were incompetent inasmuch as the Chief Commissioner passed the first or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble and judicious, it cannot be overturned by another officer under Section 154. There can be no dispute to the said proposition as discernible from the specific words in the provision for rectification as also various precedents, recently fortified in the decision in Deva Metal Powders case ( supra ). 6. The question for consideration before us is not the reasonableness of the order passed for waiver of interest; that is sought to be rectified under Section 154. As noticed earlier, the notification specifies the classes of cases or classes of income in which the reduction or waiver of interest can be considered and that according to us would be the threshold test to be satisfied for being entitled to be considered for waiver. However ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce under Section 148 of the Act cannot be said to have been filed voluntarily. It cannot also be disputed that the non-disclosure of income was not due to unavoidable circumstances and the return pursuant to notice under Section 148 was filed only after detection made by the Income Tax authorities under the provisions of the Act. This, to our mind, disentitles the assessee from being considered under the notification passed under Section 119(2)(a) of the Act. The assessee's entitlement to be considered for waiver of interest and the actual consideration of the waiver as such or the reduction thereon, are distinct and different. While discretion is conferred on the competent authority to decide on the waiver or the extent to which it can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Chief Commissioner conferred with powers to consider that claim. This is not an error which is to be "established by a long drawn process of reasoning on points where there may conceivably be two opinions" (sic) [ Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Thirumale AIR 1960 SC 137]. The Supreme Court in Deva Metal Powders case ( supra ) also while considering the powers under rectification held thus:- "The power to rectify the mistake, however, does not cover cases where a revision or review of the order is intended. "Mistake" means to take or understand wrongly or inaccurately; to make an error in interpreting; it is an error, a fault, a misunderstanding, a misconception. "Apparent" means visible; capable of being ..... X X X X Extracts X X X X X X X X Extracts X X X X
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