TMI Blog2023 (2) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... n excess refund to the petitioner, the contentions of the petitioner as raised in the petitions filed under Section 220 (2A) of the Income Tax Act both dated 25.02.2021 have not been considered. The petitioner has certainly suffered genuine hardship and for no fault of his, interest cannot be levied under Section 220 (2) when the advance taxes were infact paid on time though mistakenly in the petitioner's minor son's PAN number. It is also not the case of the respondents that the petitioner did not cooperate in any enquiry relating to the assessment or any proceedings for the recovery of amount due from him. The first respondent under the impugned order has granted partial waiver of interest to the petitioner at 20% without giving any reason as to how they arrived at that rate. When the first respondent has granted partial waiver at 20%, this Court is of the considered view that too when there is no finding given by the first respondent under the impugned orders that the petitioner has not satisfied the three conditions required for waiver of interest under Section 220 (2A) viz., a) payment of such amount has caused or would cause genuine hardship to the assessee; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er also filed a return of income for the assessment years 2009 -10 and 2011-12 for his minor son, separately. b) According to the petitioner, it was done by way of abundant caution. The declared income of the petitioner included income of Rs.33,46,321/- and Rs.35,13,860/- of his minor son Master Imaad Musvee (PAN No.AAAPI4751J) and the petitioner also claimed credit of prepaid taxes of Rs.21,27,450/- and Rs.25,41,037/- (including advance tax and TDS) paid on account of his minor son in his return of income. c) The petitioner had included the income of his minor son Master Imaad Musvee as envisaged under Section 64 of the Income Tax Act in his return. He had paid the advance tax on the said minor's income in the PAN number of the minor and also by way of abundant caution filed a return for the minor son showing the same amount in his hands also. d) The second respondent had raised tax demand on the petitioner under Section 143 (1) of the Income Tax Act on 14.03.2011 and on 29.12.2012 for the assessment years 2009-10 and 2011-12 without considering the payment of advance tax paid by the petitioner for the same income in the PAN number of his minor son. The second respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have seen that if the taxes deposited under the petitioner's minor son account were duly credited to the petitioner's account immediately on the date of remittance, the petitioner would not be made liable for any tax on interest under Section 234 A, B, C and under Section 220; f) The first respondent ought to have seen that the petitioner once again paid the taxes of Rs.13,26,540/- and Rs.11,48,990/- in his own PAN number on 12.11.2018 and 11.12.2018 respectively and the refund of Rs.16,27,220/- and Rs.13,08,490/- (including interest under Section 244A) on 26.11.2018 and 01.01.2019 respectively; g) The first respondent ought to have seen that the hardship undergone by the petitioner was due to the erroneous action of the second and third respondents in not giving credit to the Advance Tax paid; h) The first respondent ought to have seen that the interest under Section 220 (2) has been levied eventhough the taxes have been paid in 2009 and 2011 itself on the income of the minor son and the same had been included in the return of the petitioner as envisaged in Section 64 of the Act; i) The first respondent ought to have seen that it is well settled law that int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest. 5. Per contra, learned Standing Counsel appearing for the respondents would reiterate the contents of the impugned order and would submit that the petitioner had not approached the Assessing Officer for rectification with regard to shortfall of credit, instead, separate returns on the hands of his son were filed which resulted in total refund of Rs.16,85,870/- and Rs.13,08,490/- (including interest under Section 244A). He would also submit that the Assessing Officer has stated that the assessee had paid total demand of Rs.13,26,540/- and Rs.11,48,990/- and hence, there is excess refunds of Rs.3,59,300/- [Rs.16,85,870/- (-) Rs.13,26,540/-] and Rs.1,59,500/- [Rs.13,08,490 (-) Rs.11,48,990/-] causing loss to the Department. According to him, only based on the materials available on record, the respondents have partially allowed the waiver applications filed by the petitioner under Section 220 (2A) of the Income Tax Act by granting waiver of 20% of the interest amounting to Rs.2,44,076/- and Rs.1,63,036/- and directed the petitioner to pay the balance 80% interest amounting to Rs.9,76,304/- and Rs.6,52,143/- by 30.04.2022. According to him, there is no infirmity in the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a separate return in the hands of the minor son was filed which resulted in total refund of Rs.16,85,870/- and Rs.13,08,490/- (including interest under Section 244A) which compelled the respondents to pay an excess refund of Rs.3,59,300/- and Rs.1,59,500/- to the petitioner, the contentions of the petitioner as raised in the petitions filed under Section 220 (2A) of the Income Tax Act both dated 25.02.2021 have not been considered. 11. The respondents before rejecting the petitioner's applications have not taken note of the following undisputed facts: a) The wrong tax demand generated by the third respondent without giving credit to the advance tax paid by the petitioner in the name of his minor son Imaad and there was delay in passing the rectification order dated 30.01.2018 and 12.11.2018 and 18.12.2018 by the second respondent are beyond the control of the petitioner; b) There is no lapse on the part of the petitioner in the payment of his taxes and he has not committed any default; c) The taxes deposited under the petitioner's minor son's account were duly credited to the petitioner's account immediately on the date of remittance; d) The petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned orders that the petitioner has not satisfied the three conditions required for waiver of interest under Section 220 (2A) of the Income Tax Act viz., a) payment of such amount has caused or would cause genuine hardship to the assessee; b) default in the payment of the amount on which interest was payable under the said Sub-Section was due to circumstances beyond the control of the assessee; and c) the assessee has not cooperated in any inquiry relating to the assessment or any proceeding for the recovery of any amount due from him; the first respondent ought to have granted full waiver of the interest to the petitioner, but, instead, erroneously has granted only 20% waiver by passing non speaking orders. 14. However, this Court will also have to take note of the fact that the petitioner has already got the benefit of interest while the respondents had refunded a sum of Rs.3,59,300/- and Rs.1,59,500/- under Section 244A of the Income Tax Act. Certainly that amount has to be adjusted from and out of the waiver of interest under Section 220(2A) of the Income Tax Act. The petitioner had sought for waiver of Rs.12,20,380/- and Rs.8,15,179/- under Section 220 (2A) o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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