TMI Blog1997 (8) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... the total tax payable as Rs. 70,483. As against it, the assessee filed an appeal and by exhibit P-2 dated December 12, 1983, the Appellate Assistant Commissioner rejected the appeal. The petitioner filed a further appeal before the Income-tax Appellate Tribunal as I. T. A. No. 231 (Coch) of 1984. It was allowed as per exhibit P-3. Consequently, the application of the assessee for rectification under section 154 was allowed, as a result of which the depreciation in respect of buses had been fixed at the rate of 40 per cent. Subsequently, the first respondent issued exhibit P-4 order giving effect to exhibit P-3 order thereby allowing refund of the total amount of Rs. 11,554 being the excess amount paid. As against exhibit P-3 order of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f each case. In substance it is a power coupled with a duty to exercise it in the interest of justice to the assessee. The prime point urged by counsel for the petitioner is that the Commissioner has failed to apply his mind to the case of the assessee for waiver of interest under section 220(2A) of the Act which runs as follows : "Notwithstanding anything contained in sub-section (2), the Chief Commissioner or Commissioner may reduce or waive the amount of interest paid or payable by an assessee under the said sub-section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult of the orders of the Appellate Assistant Commissioner a fresh demand notice had to be served on the assessee before he could be treated as a defaulter under the Act. Senior standing counsel for the Department has vehemently attacked this plea. Further, he has brought to my notice a decision of Kochu Thommen J. (as he then was of this court) in New Woodlands v. CIT [1982] 138 ITR 795 (Ker). There the learned judge took notice of section 3 of the Taxation Laws (Continuation and Validation of Recovery Proceedings) Act, 1964, and then observed : "A notice of demand is a consequential order made on the basis of the original order of assessment. If a fresh notice of demand is not required under the Act where the original order of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee in respect of that assessment year, particularly, in the light of section 237 of the Income-tax Act, 1961." No doubt, under section 264 the Commissioner is not (sic) empowered to pass an order "not being an order prejudicial to the assessee". By the impugned order, exhibit P-9, the revision filed by the assessee has been dismissed. That does not mean it is an order "prejudicial to the assessee" and hence the Commissioner has no power to pass such an order. Of course, the Commissioner in the exercise of his revisional power under section 264 may grant relief to the assessee but in terms of the section, the Commissioner in no case can pass an order prejudicial to the assessee. The Privy Council in CIT v. The Tribune Trust [1948] 16 IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not a case where genuine financial hardship is caused to the assessee inasmuch as he derives income from the transport business regularly. That means there would not be any genuine hardship to the assessee for the payment of tax. The assessee has no case that the default in the payment of tax was caused due to circumstances beyond the control of the assessee. In sum and substance the Commissioner is not satisfied as to the requirements contemplated under sub-section (2A) of section 220 of the Act. Of course, the Commissioner has not specifically mentioned in exhibit P-9 order that he is not satisfied with the requirements 1, 2 and 3 contained in sub-section (2A). Because of non-mentioning of these provisions in the impugned order, I cann ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
