9911796707
TMI Blog2003 (12) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... as justified in exercising his power under section 119 (2) (a) in the light of the Board's order and has rightly chosen to waive interest up to April 30, 1999, i.e., till the date of the judgment of the Supreme Court - - - - - Dated:- 1-12-2003 - Judge(s) : R. GURURAJAN. JUDGMENT R. GURURAJAN J.-The petitioner-Balkrishna, aggrieved by annexure "F" dated February 20,2003, in file No. CC-I/ACIT(T)-1/119(2)(a)/I/34 of 2002-03 is before me. The petitioner, a private limited company, is an assessee in terms of the provisions of the Income-tax Act, 1961 (for short "the Act"). For the assessment year 1993-94, the petitioner filed its return claiming a net refund of Rs. 1,26,257 after availing of the benefits of special deduction under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under section 143(1) of the Act was received on March 31, 1998. The same was followed by a demand. A reply was sent by the petitioner in this regard. On December 6, 2000, the assessing authority issued a notice under section 154 of the Act proposing to rectify the mistake in the case on hand. A reply was submitted by the petitioner. The petitioner relied on the judgment of this court in CIT v. Rahebar Farms (ITRC No. 25 of 1991). The Supreme Court thereafter in the case of CIT v. Venkateswara Hatcheries (P.) Ltd. [1999] 237 ITR 174 reversed the judgment of this court and ruled that special deduction was available for new industrial undertakings which were engaged in manufacture or production of articles, a condition precedent to claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequently reversed the judgment of the High Court and the said reversal of the judgment of the High Court by the Supreme Court should not come in his way of his claiming waiver of interest on the peculiar facts of the case. Per contra, the State counsel says that levy of interest is automatic and ,no waiver is permissible in such cases. He says that the order is to be confirmed by this court. After hearing learned counsel, I have carefully perused the material on record. The admitted facts reveal an application made by the petitioner seeking for waiver of interest. The material facts further reveal that the petitioner claimed certain deductions in the light of the judgment of a jurisdictional High Court and the same was accepted. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment years 1993-94, 1994-95,1995-96 and 1997-98 on account of the Supreme Court's decision referred to above, is hereby waived. Interest, if any, chargeable subsequent to April 30, 1999, and up to the date of assessment shall be charged and collected by the Assessing Officer." It is to be noticed at this stage, a few provisions governing levy of interest. Section 4 of the Income-tax Act provides for charge of income-tax in respect of a total income of the previous year of every person. Section 139 provides for procedure for assessment. Section 234A provides for interest for default in furnishing return of income. It provides for interest and the said section mandates payment of simple interest in terms of the said provision. The S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bear from enforcing the provisions of an Act which was not validly enacted. In other words, a writ of mandamus was predicated upon the view that the High Court took that the 1979 Act was constitutionally invalid. Consequently the court directed the authorities under the said Act to forbear from enforcing the provisions of the Act qua the petitioners. The Act was subsequently declared constitutionally valid by this court. The Act, therefore, was under an eclipse, for a short duration; but with the declaration of the law by this court, the temporary shadow cast on it by the mandamus disappeared and the Act revived with its full vigour, the constitutional invalidity held by the High Court having been removed by the judgment of this court. If t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued with regard to waiver of interest. But for this provision, waiver is impossible. The Board has issued an order on May 23, 1996, providing for reduction or waiver of interest for late filing of the return of income, etc. Therefore, the petitioner cannot as a matter of right demand that interest has to be waived as a whole in the given circumstances. The waiver is by virtue of a power under section 119(2)(a) in terms of the Board's order. In the case on hand, the Commissioner exercising his power under the said section in the light of the Board's order has chosen to waive interest up to April 30, 1999, i.e., till the date of the judgment of the Supreme Court. This waiver in my view, is reasonable and acceptable in the given circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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