TMI Blog2016 (11) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... used in paragraph 2(d) of the order issued by the CBDT can come to the petitioner’s rescue. We must point out that no decision of this Court on the interpretation of Section 54F(4) of the Act (as in force at the relevant time) was brought to our notice which took a view that no tax is payable on the amounts of gain made on sale of land, if not invested and also not deposited in the specified bank account as mandated by Section 54F(4) of the Act. Further, the waiver or reduction is entirely discretionary and the provisions that the circular merely indicate the conditions precedent to exercise of such discretion. The Chief Commissioner of Income Tax while considering the application dated 7th August, 2002 for waiver or reduction of tax has observed that discretion must be exercised strictly within the parameters laid down in the order. The parameters are binding upon the authorities and the petitioner was not entitled to such benefit, in case it does not fall within it. In the present facts, the petitioners have not been able to establish that non payment of the tax and/or non investment in the specified bank account in terms of Section 54F of the Act was on account of un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,250/. Despite agreeing to purchase a flat for a consideration of ₹ 69,60,000/part payments of only ₹ 35,00,000/were made till the date of filing return. The balance of ₹ 34,60,000/ought to have been deposited by the petitioner in a specified account, however, he failed to do so. Upon the return being filed after the due date and the Petitioner not having paid Advance tax the assessing officer levied interest under Sections 234A, 234B and 234C vide order dated 13.3.2001. 5. Under Section 234A, if the return of income for any assessment year under section 139(1) is furnished after the due date then at the relevant time the assessee is liable to pay simple interest at the rate of 2% for every month or part of a month comprising the period commencing on the date immediately following due date and ending on the date when it is furnished and in case no return is furnished, interest will be computed till date of completion of the assessment under Section 144. Such interest is computed on the amount of the tax on the total income as determined under Section 143 (1) provided that such tax determined shall be reduced by the amount of advance tax, if any, paid. 6. Und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment of law or as the case may be, the decision of Supreme Court in his own case, which event has taken place after the end of year of any such previous year, in any assessment or reassessment proceedings the advance tax paid by the assessee during the financial year immediately preceding the relevant assessment year is found to be less than the amount of advance tax payable on his current income, the assessee is chargeable to interest under Section 234B or section 234C and the Chief Commissioner of Director General is satisfied that this is a fit case for reduction or waiver of such interest. (Emphasis supplied) 10. Paragraph (d) of the said notification was later revised by CBDT order under Section 119 (2)(a) dated 30.1.1997 as under : 2. In partial modification of this para of the order, the Central Board of Direct Taxes has decided that there shall be no condition that the decision of the High Court or the Supreme Court, as referred to therein, must be given in the assessee's own case. Also the condition that any retrospective amendment of law or the decision of the Supreme Court or the jurisdictional High Court must have been made after the end of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee also relied upon the decision of Prime Securities Ltd v/s Assistant Commissioner of Income Tax (Investigation) [2011] 333 ITR 464 and submitted that this court had held that there was no interest liability in cases where the assessee could not anticipate events of the next financial year and hence no default in paying advance tax. 14. Mr. Chatterjee also relied upon a judgment of the Kerala High Court in CIT v/s Jimichan M.Varicatt [2011] 330 ITR 338 (Ker) and the decision of the Gujarat High Court in Smt. Bhanuben Panchal Vs. Chandrikaben Panchal Vs. CCIT and others 269 ITR 27 in which the High Court had reduced the interest levied. He therefore submitted that the Petitioner's case be favourably considered. 15. On behalf of the revenue Mr. Malhotra resisted the petition inter alia contending that the facts of the present case did not call for exercise of any discretion in favour of the assessee. The Assessee had clearly fallen foul of the law in not having deposited the monies retained by him in the specified account and by not offering the amounts not paid for purchase of the flat to tax and finally in having failed to pay advance tax. Mr. Malhotra relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase or as the case may be has been used in the order dated 23rd May 1996 to cover the alternative to an assessee not paying tax in view of the High Court decision which is now payable as a consequence of a retrospective amendment of law or as the case may be by the decision of the Supreme Court, which event takes place subsequent to the previous year relevant to Assessment Year. Therefore, it has been used in the sense of as the situation may be . In fact, this phrase as the case may be was subject of consideration by the Supreme Court in Union of India Vs. Ashok Kumar, 2005(8) SCC 760. The Court held that the phrase as the case may be would mean either of the alternatives as listed out along with the phrase as the case may be . The Court held it would mean whichever the case may be or as the situation may be . It would mean one of the various alternatives. The order dated 23.5.1996 of the CBDT grants relief of waiver and / or reduction of interest on the ground that the nonpayment of tax was on the basis of the decision of the jurisdictional High Court which was subsequently nullified by either retrospective amendment of the law or by a Supreme Court decision. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terjee had relied upon the judgment of Gujarat High Court in the matter of Smt. Bhanuben Panchal (supra) . In the above case, the Gujarat High Court observed in the context of the facts before it that under clauses (a) to (d) of paragraph 2 of the order dated 23rd May, 1996, the nonpayment of tax was for circumstances beyond the control of the assessee and the same could be considered as a specie of unavoidable circumstances. Clauses (a) to (e) merely illustrate the different facets of the underlying principle that waiver of interest is to be considered when the delay on the part of the assessee is due to unavoidable circumstances or on account of the circumstances beyond his control. When such circumstances, if they exist, lead to delay in filing return of income and results in delay in payment of taxes, they would qualify for consideration as unavoidable and therefore a case to be considered for reduction or waiver of interest. It is true that the Gujarat High Court in Smt. Bhanuben Panchal (supra) does state that various clause (a) to (e) of the order dated 23rd May, 1996 issued by the CBDT are merely illustrative of the principle where delay on the part of assessee i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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