N.PARAMESWARAN vs. THE COMMISSIONR OF INCOME TAX
What did the High Court hold?
The Tribunal held that the power under Section 220(2A) is not meant to be invoked repeatedly based on every change in circumstances. The petitioner's initial application for waiver was considered and rejected by the Commissioner (Ext.P2) on the ground that the petitioner had not paid the demanded tax, thus failing the condition of co-operation in recovery proceedings. Subsequent applications, including one invoking Section 190(2) and Section 220(2A), were also considered and the latter prayer was again rejected for non-cooperation due to default in payment (Ext.P3 and P6). The Court found these subsequent applications to be incompetent. Since the Commissioner had already exercised discretion and found a condition not satisfied, the Court declined to interfere, especially given the finding of non-cooperation due to payment default. The writ petition was dismissed.
What were the facts?
The petitioner, N. Parameswaran, a former stock broker, challenges an order (Ext.P6) refusing to waive interest under Section 220(2A) of the Income Tax Act. The petitioner did not file returns for assessment years 1990-91 and 1991-92, claiming insufficient income. For assessment year 1992-93, returns were filed without annexures. Notices under Section 148 were issued for non-filing, and assessments for subsequent years were completed under Section 144 due to non-cooperation. The petitioner's primary contention is that his case warrants waiver of interest under Section 220(2A) due to genuine hardship, delay not attributable to him, and his cooperation. The Revenue argued against the petition, deeming it frivolous.
What were the issues?
1. Whether the petitioner's case satisfies the conditions for waiver of interest under Section 220(2A) of the Income Tax Act, specifically: (a) genuine hardship for payment, (b) delay not attributable to the assessee, and (c) assessee's co-operation in recovery proceedings. The petitioner argued that the facts and circumstances demonstrate satisfaction of all three conditions, entitling him to consideration for waiver. The Revenue contended otherwise. 2. Whether the petitioner's subsequent applications for waiver, after an initial rejection, were competent. The petitioner argued that changed circumstances, including making payments, warranted reconsideration. The Court questioned the competency of recurring applications for the same relief after a prior rejection.
Which sections of the Income-tax Act were involved?
Section 220(2A),Section 148,Section 144,Section 190(2)
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Cause title — parties, addresses and appearances
JUDGMENT
The petitioner challenges Ext.P6 order refusing to invoke the powers conferred on the first respondent for waiver under Section 220 (2A) of the Income Tax Act. The petitioner was a stock broker and on the claim that he had no sufficient income for the years 1990-91 and 1991-92, did not file any return of income. For the assessment year 1992-93, the petitioner filed returns however without necessary annexures. In such circumstances, the department was constrained to issue notice under Section 148 for the years in which no return was filed. For the subsequent years due to non co-operation of assessee, assessment was completed under Section 144 of the Income Tax Act. The assessment as such is not the subject of challenge in the above writ petition and the petitioner claims only waiver of interest levied under Section 220 invoking the power conferred under Section 220 (2A). The petitioner's counsel contended that the petitioner's case is one which is fit for consideration under Section 220 (2A). The three conditions to be satisfied under the said Section are (i) genuine hardship for payment (ii) default of payment or delay not being due to circumstances attributable to the assessee and (iii) assesse's co-operation in any inquiry or any proceedings for recovery. The counsel for the petitioner would submit that the facts and circumstances of the case would amply evidence the satisfaction of all the above three conditions, thus entitling the case of the assessee to be one fit to be considered under Section 220 (2A). The counsel for the Revenue would however contend otherwise and urge for the dismissal of the Writ Petition as frivolous.
The assessee, who is the petitioner herein has challenged Ext.P6 order as one passed rejecting the invocation of the powers under Section 220 (2A). I find that the petitioner had approached the Commissioner of Income Tax invoking powers under Section 220 (2A) of the Act with an earlier petition which was rejected by Ext.P2 finding that the petitioner has not paid the amounts demanded as tax and hence the petitioner cannot be said to have complied with the 3rd condition, namely the co-operation in any proceedings for the recovery of tax due. The petitioner's contention is that on such rejection, he had approached the Chief Commissioner again and in the changed circumstances of the payment having then been made, the Chief Commissioner ought to have considered the prayer of the petitioner favourably. However, contrary to what is submitted, I find that even the second application made by the petitioner invoking both Section 190 (2) as also 220 (2A) of the Income Tax Act was considered by the Chief Commissioner and the latter prayer was again rejected for non co-operation evidenced by default in making payment. It was after two unsuccessful attempts that the petitioner again approached the Commissioner of Income Tax by Ext.P5 which was again rejected on the ground of non co-operation by Ext.P6. In my opinion, the power conferred under Section 220 (2A) is not a power which could be invoked in a recurring manner on every change in circumstance. The first application having been considered by the competent authority and rejected by Ext.P1; there was no scope for any further application for the very same relief being made before the Chief Commissioner or the Commissioner. The applications which resulted in Ext.P3 and P6 according to me, is incompetent. The Commissioner having once exercised his discretion and found that one of the conditions contemplated under section 220(2A) has not been satisfied, it is not for this Court to interfere with the same especially, in circumstance of the non cooperation having been found due to default in payment.
In the circumstances, the above writ petition is devoid of merit and is dismissed. K.VINOD CHANDRAN, JUDGE su
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