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V.M. MATHAI Versus PRINCIPAL COMMISSIONER OF INCOME TAX, KOCHI AND TAX RECOVERY OFFICER, KOCHI

2016 (8) TMI 966 - KERALA HIGH COURT

Waiver or reduction of interest - Application under Section 220(2A) rejected - non fulfillment of all the conditions laid down in Section 220 (2A) - Held that:- When the statutory authority has been given the discretion to consider whether any of the conditions specified under Section 220 (2A) has been complied with, it is for the said authority to take into consideration all the necessary materials which had been placed before it in the form of a representation as well as documents and either t .....

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ave been stated. - As rightly contended by the learned counsel on behalf of the petitioner, the Hon'ble Supreme Court in B.M.Malani vs. Commissioner of Income Tax and Another [2008 (10) TMI 2 - SUPREME COURT] had clearly indicated that when an application is considered under Section 220(2A) it has to be considered in a judicious manner. The Commissioner in Ext.P6 stated that there is a threat by the assessee and waiver of interest cannot be done by threat. Thus we do not think that the said .....

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a copy of this judgment and in the light of the law relied on by the Apex Court as referred above. - W.P.(C) No.20210 of 2016 - Dated:- 10-8-2016 - A.M.SHAFFIQUE, J. FOR THE PETITIONER : SRI.BECHU KURIAN THOMAS, SENIOR ADVOCATE., ADV. SRI.ENOCH DAVID SIMON JOEL FOR THE RESPONDENT : ADVS. SRI.K.M.V.PANDALAI, SC, SRI.CHRISTOPHER ABRAHAM, SC. JUDGMENT Petitioner challenges Ext.P6 by which an application under Section 220(2A) of the Income Tax Act 1961 has been rejected on the ground that the assess .....

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the liability as such. The petitioner has also a case that the only property belonging to him has been attached by the Income Tax Department. Unless the property is sold, the petitioner will not be in a position to pay even the principal amount. In such circumstances, according to the petitioner he is a person who is entitled for the benefit of waiver or reduction of interest as all the conditions specified under Section 220 (2A) stands complied. 3. It is submitted that the Commissioner had not .....

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ined as under: Genuine means not fake or counterfeit, real, not pretending (not bogus or merely a ruse) . 17. For interpretation of the aforementioned provision, the principle of purposive construction should be resorted to. Levy of interest is statutory in nature, inter alia, for recompensating the Revenue from loss suffered by non-deposit of tax by the assessee within the time specified therefor. The said principle should also be applied for the purpose of determining as to whether any hardshi .....

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tage 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 India1 (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. .....

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st act within the four corners of the statute. Indisputably, the Commissioner has the discretion not to accede to the request of the assessee, but that discretion must be judiciously exercised. He has to arrive at a satisfaction that the three conditions laid down therein have been fulfilled before passing an order waiving interest. 20. Compulsion to pay any unjust dues per se would cause hardship. But a question, however, would further arise as to whether the default in payment of the amount wa .....

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he levy of interest on the ground of non-payment of correct amount of tax by itself can be a ground for nonacceding to the request of the assessee as the levy is a statutory one but it is another thing to say that the said factor shall not be taken into consideration at all for the purpose of exercise of the discretionary jurisdiction on the part of the Commissioner. The appellant volunteered that the securities be sold. Why the said request of the appellant could not be acceded to has not been .....

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ed that the Commissioner had considered the question regarding the plea of the petitioner and had rightly disposed of the same in terms of Ext.P6. Reply affidavit has been filed by the petitioner relying upon Exts.P7 & P8 to indicate that the petitioner and his wife were suffering from bipolar disorder and is under treatment. 5. Having heard the learned counsel on either sides, I am of the view that, when the statutory authority has been given the discretion to consider whether any of the co .....

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