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TMI Blog2004 (11) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Income-tax to restore the application of the petitioner filed under section 220(2A) to his file and dispose of the same afresh in accordance with law - - - - - Dated:- 18-11-2004 - Judge(s) : P. SATHASIVAM., C. NAGAPPAN. JUDGMENT The judgment of the court was delivered by P. Sathasivam J.- The writ appeal is filed against the order of the learned single judge dated September 9, 1997, made in W.P. No. 15177 of 1988, in and by which the learned judge confirmed the order dated November 7, 1988, of the Commissioner of Income-tax- first respondent herein. For convenience, we shall refer to the parties as arrayed before the learned single judge. The petitioner-M/s. Auro Food Limited, Pondicherry, filed a petition under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 220(2) of the Act for the assessment year 1980-81. The learned judge, by the impugned order dated September 9, 1997, after considering the relevant provision, the claim of the petitioner and the stand taken by the Department arrived at a conclusion that the authority has exercised its discretion properly, rejected the claim for waiver of interest, and dismissed the writ petition; hence the present writ appeal. Heard Mr. P.P.S. Janarthana Raja, for M/s. Subbaraya Iyer, learned counsel for the appellant, and Ms. Pushya Sitaraman, learned senior standing counsel for income-tax/respondents. Learned counsel appearing for the appellant after taking us through sub-section (2A) of section 220 of the Act and circumstances highlighte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 said sub-section was due to circumstances beyond the control of the assessee; and (iii) the assessee has co-operated in any inquiry relating to the assessment or any proceeding for the recovery of any amount due from him." In order to avail of the benefits of the above provision, the assessee has to establish that the payment of interest has caused or would cause (a) genuine hardship; (b) default was due to circumstances beyond the control of the assessee; and (c) the assessee has co-operated in an enquiry or in any proceeding. Now, we shall consider whether the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... separately by giving adequate reason for rejecting the petition for waiver of interest. In this regard learned counsel for the appellant very much relied-on the decision of the apex court in the case of Kishan Lal v. Union of India [1998] 230 ITR 85. There also, in order to avoid levy of interest, an application under sub-section (2A) of section 220 of the Act was filed before the Central Board of Direct Taxes. The Board has rejected the said application by giving the following reason. "Please refer to your petition dated nil and further petition dated November 24, 1986, on the subject mentioned above. The Board has examined the matter. After considering the application filed by you and the report of the Commissioner of Income-tax in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice in this regard would be clearly applicable. It will be seen that a decision which is taken by the authority under section 220(2A) can be subjected to judicial review, as was sought to be done in the present case by filing a petition under article 226; this being so and where the decision of the application may have repercussions with regard to the amount of interest which an assessee is required to pay it would be imperative that some reasons are given by the authority while disposing of the application. Mr. Salve, learned senior counsel for the appellant, has strongly relied upon the observations of this court in Siemens Engineering and Manufacturing Co. of India Ltd. v. Union of India, AIR 1976 SC 1785; [1976] 2 SCC 981, where at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder recording his reasons for dismissing the petition filed by the assessee. We hold that the order of the Commissioner dated November 7, 1988, is not supported by reasons and the observation and conclusion made by the Supreme Court in the case of Kishan Lal [1998] 230 ITR 85 would squarely apply to the case on hand. This material aspect has not been considered by the learned judge who has committed an error in dismissing the writ petition. In the light of what is stated above, we hereby set aside the order of the learned judge dated September 9, 1997, made in W.P. No. 15177 of 1988 and the proceedings of the Commissioner of Income-tax in C. No. 2031 (64) of 1988-89/TN.V dated November 7, 1988. We direct the Commissioner of Income-tax to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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