2018 (2) TMI 184 - HC - Income Tax

Entitled to waiver of interest levied u/s 220 (2A) - rectification of mistake - Held that - A perusal of the impugned order does not reveal any cogent reason for rejecting the request of the petitioner. The respondent is bound to consider the Petition, as to whether the petitioner fulfilled all the three conditions laid down under Section 220 (2A) and record reasons, as to how, the petitioner is not entitled to the waiver of penal interest. Junior Standing Counsel for the Revenue pointed out that, the Rectification Petition is said to have been presented wayback in the year 2007, and by now, it would have been disposed of. Whereas, the learned counsel appearing for the petitioner, on instructions, submitted that the Petition is yet to be disposed of, and the same is pending before the respondent. Thus, considering the fact that Petition for rectification is pending, and this Court, being satisfied that the respondent has not recorded any reasons, as to why, the petitioner is not entitled to waiver of interest, levied under Section 220 (2A), the matter requires to be re-considered by the respondent afresh. Thus, for the above reasons, this Writ Petition is allowed

Summary

Issues:
Impugned order under Sections 234A, 234B & 234C of Income Tax Act, 1961 - Liability for capital gains - Waiver of interest under Sections 234A, 234B, 234C, and Section 220(2A) - Rectification Petition under Section 154 of the Act.

Analysis:
The petitioner challenged the order passed by the respondent, contesting the liability for capital gains arising from the sale of a property mortgaged to secure a loan for a sister concern. The key issue was whether the petitioner is liable for capital gains in this scenario. The petitioner sought a waiver of interest, citing precedents from the Kerala High Court and High Court of Andhra Pradesh, arguing that no capital gains should be attributed when the sale proceeds are directly credited to the bank. The Revenue, however, maintained that the petitioner did not meet the criteria outlined in the Circular of Central Board of Direct Taxes, justifying the rejection of the interest waiver application.

The petitioner further requested rectification of the impugned order under Section 154 of the Act, pointing out a mistake in the order's premise. It was contended that the respondent did not provide sufficient reasons for denying the interest waiver, emphasizing the quasi-judicial nature of the decision-making process. The court noted the absence of clear reasons in the impugned order and directed a fresh consideration by the respondent, highlighting the necessity for recording reasons for denying the interest waiver under Section 220(2A).

The court allowed the Writ Petition, setting aside the impugned order and remanding the matter to the respondent for a fresh evaluation. The respondent was instructed to consider the rectification petition filed by the petitioner under Section 154 and make a new decision in compliance with the law. The court acknowledged the pending status of the rectification petition and emphasized the importance of recording reasons for decisions related to interest waivers. The petitioner was granted the opportunity to present all relevant points before the respondent for a fresh determination.