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TMI Blog2018 (2) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... above. - Writ Petition (M/S) No.1658 of 2013 - - - Dated:- 10-1-2018 - Hon ble Rajiv Sharma , J. Mr. Rahul Consul, Adv. for the Petitioner Mr. Hari Mohan Bhatia, Advocate, for the Department ORDER On 21.12.2001, a survey u/s 133(A) of the Income Tax Act, 1961 (hereinafter to be referred as the Act ) was carried out in the business premises of petitioner s proprietorship concern. Petitioner was made to surrender an income of ₹ 50.00 lakh. Petitioner filed his income tax return on 13.1.2005 declaring total income of ₹ 51,10,850/-. The Assessing Authority has passed the assessment order on 7.3.2005 u/s 143(3) of the Act. However, the Assessing Authority has imposed the interest of ₹ 11,02,480/- u/s 234(A) (B) and (C) of the Act on the petitioner. Petitioner had deposited a sum of ₹ 15,45,000/- excluding the interest part. He was issued the demand notice on 05.12.2008 and garnishee notice on 19.12.2008. He submitted an application for rectification of the mistake u/s 154 of the Act on 18.02.2009. Thereafter, petitioner again filed an application on 2.2.2009 for waiver of interest. Thereafter, he filed yet another application seeking adjour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntemplation of the assessee, and the advance tax on such income is paid in the remaining instalment or instalments, and the Chief Commissioner/Director General is satisfied on the facts and circumstances of the case that this is a fit case for reduction or waiver of the interest chargeable under section 234C of the Income-tax Act. (c) Where any income was 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 as result, he did not pay income-tax in relation to such income in any previous year, and subsequently, in consequence of any retrospective amendment of law or the decision of the Supreme Court of India, or as the case may be, a decision of a Larger Bench of the jurisdictional High Court (which was not challenged before the Supreme Court and has become final), in any assessment or reassessment proceedings the advance tax paid by the assessee during such financial year is found to be less than the amount of advance tax payable on his current income, and the assessee is chargeable to interest under section 234B or section 234C, and the Chief Commissioner/Directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be, a decision of a Larger Bench of the jurisdictional High Court (which was not challenged before the Supreme Court and has become final), in any assessment or reassessment proceedings, the advance tax paid by the assessee would be less than the amount of advance tax payable on his current income. 10. Para (C) covers only those cases where the income tax is not paid in relation to such income which was not chargeable to income tax on account of any judicial pronouncement and in consequence of a retrospective amendment of law. 11. Para (D) applies where a return of income could not be filed by the assessee due to unavoidable circumstances and such return of income is filed voluntarily by the assessee or his legal heirs without detection by the Assessing Officer. 12. In the present case, the notice u/s 142(1) of the Act was issued by the ITO on 19.8.2002 calling for return of income by 26.8.2002. Thereafter, again the notices were issued on 9.9.2002 and 17.10.2002. Thus, it cannot be said that the return could not be filed due to unavoidable circumstances. In totality, the petitioner s case is not covered in any of the Paragraphs of the Circular dated 26.6.2006 issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so. Lord Blackburn observed in the same case at pp. 244-245 that the enabling words give a power which prima facie might be exercised or not, but if the object for which the power is conferred is for the purpose of effectuating a right there may be a duty cast upon the donee of the power to exercise it for the benefit of those who have that right when required on their behalf. Lord Penzance and Lord Selbone made similar observations at pp. 229 and 235. Exercise of power to rectify an error apparent from the record is conferred upon the Income-tax Officer in aid of enforcement of a right. The Income-tax Officer is an officer concerned with assessment and collection of revenue, and the power to rectify the order of assessment conferred upon him to ensure that injustice to the assessee or to the Revenue may be avoided. It is implicit in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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