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TMI Blog2013 (5) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... of another learned Single Judge in Commissioner of Income Tax -v- A.V. Thomas - (1997) ITR 29 DD 10.1.1997 taking a contrary view by extending the benefit of Section 80HHC. The Tribunal, following the subsequent opinion, allowed the appeal by order dt. 29.12.2000. 2. Petitioner under the bonafide belief that the Judgment of the learned Single Judge in A.V. Thomas' case (Supra2) dt. 10.1.1997 insofar as it related to extending the benefit of deduction under Section 80HHC of the Act was available to it during the previous year 2000-2001 did not pay the advance tax during the three quarters ending December 2000 and thereafterwards. However, the revenue carried the order of the 'Tribunal' in Income-tax Appeal No.127/2001 before this Court, and during its pendency, the Apex Court in IPCA Laboratory Limited -v- Deputy Commissioner of Income Tax - (2004) 226 ITR 521 (SC) DD 11.3.2004 declared the law over applicability of Section 80 HHC of the Act, following which this court by order dated 8.12.2006 allowed the appeal of the Revenue disentitling the petitioner to the deduction. In effect the benefit allowed to the petitioner by the Assessment Officer and the Income-tax Tribunal was nulli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing the decision of the Apex Court in IPCA Laboratory Limited's case (Supra3), the Chief Commissioner was not justified in denying waiver of interest. It is lastly submitted that petitioner being under the bonafide belief that the decision in A.V.Thomas' case (Supra2) of the learned Single Judge of the High Court of Kerala did hold the field insofar as Section 80HHC of the Act, was entitled to the benefit of that Judgment and justified in not making payment of advance tax during the first three quarters of the previous year 2000-01, hence, there was no justification to decline the benefit of waiver of interest. Learned counsel places reliance upon the decision of the High Court of Gujarat in Bhanuben Panchal and Chandrikaben Panchal -v- Chief Commissioner of Income Tax - (2004) 269 ITR 27 (Gujarat) Paragraph 7. 5. Per contra learned counsel for the Revenue seeks to sustain the order impugned as being well merited, fully justified and not calling for interference. 6. According to the learned counsel paragraph 2(c) takes into fold only one class of case i.e. where any income was not chargeable to income of an assessee on the basis of an order of the High Court within whose jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for interest for default in payment of advance tax by an assessee who is liable to pay advance tax under Section 208 or when the advance tax paid by such assessee under Section 210 is less than 90% of the assessed tax. In such cases assessee is liable to pay simple interest at the rate of one percent for every month or part of a month comprised in the period from the 1st day of April next following such financial year to the date of determination of total income under sub-section (1) of Section 143 and where a regular assessment is made to the date of such regular assessment on an amount equal to the assessed tax or, as the case may be, on the amount by which the advance tax paid as aforesaid falls short of the assessed tax. 10. In order to obviate the hardship of the assessee the 'Order' F.400/234/95 IT(B) dated 30.1.1997 was issued under Section 119(2)(a) of the Act, as modified by order F.400/129/2002-IT(B) dated 26.6.2006. Paragraph 2(c) of the said order reads thus: "2. The class of incomes or class of cases in which the deduction or waiver of interest under Section 234A or section 234B or, as the case may be section 234C can be considered, are as follows: &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umerate all kinds of hardships that would befall an assessee to be considered for waiver of interest under Section 234B or 234C. The waiver or reduction in interest under Sec. 234A or 234B or 234C, in paragraph 2(a) is if the delay on the part of the assessee in filing the return is due to seizure of books of account and other documents during search and seizure under Sec. 132 of the Act; Paragraph 2(b) provides that if any income chargeable to Income Tax under any head of income other than "capital gains" is received or accrued after the due date of payment of the first or subsequent installment of advance tax, neither anticipated nor in the contemplation of the assessee; paragraphs 2(c) refers to any income not chargeable to Income Tax in the case of an assessee on the basis of any order passed by the High Court within whose jurisdiction he is assessable to income - tax and did not pay income - tax in relation to such income, and subsequently as a consequence of a decision of the supreme court, in an assessment or reassessment if it is found that the advance tax paid is less than the amount payable on his current income; paragraph 2(d) provides for instances where return of incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticed supra, petitioner bonafide believed that the decision of the High Court of Kerala in A.V. Thomas' case (Supra2) was applicable, entitling the petitioner to the deduction under Sec. 80 HHC of the Act. The Tribunal bound by the said decision had no option but to apply the same to the case of the petitioner, aggrieved by which ITA 127/01 filed by the revenue before this court, was allowed following the opinion of the Supreme Court in IPCA Laboratory's case (Supra3), impliedly overruling the decision in A.V.Thomas' case (Supra2). In the circumstances, it would be incongruous to hold that paragraph 2 (c) applies only to cases of orders passed by the High Court within whose jurisdiction the assessee is assessable to Income Tax under the Act and not to a decision of any other High Court. Under the law of precedents too judgments of other High Courts are persuasive. 16. A division bench of the High Court of Gujarat in Bhaneben's case (Supra4) regard being had to the facts obtaining therein over delay in filing the return of income resulting in late payment of taxes, an unavoidable circumstance, observed thus: "7. It is thus clear that Clause (a) to (d) all state the ci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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