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TMI Blog2018 (3) TMI 1165X X X X Extracts X X X X X X X X Extracts X X X X ..... during the assessment proceedings, statements were made and retracted. This would by itself establish the fact that, full co-operation was lacking during the assessment proceedings. Thus holding the petitioner is not entitled to waiver. - Writ Petition No. 2519 of 2017 - - - Dated:- 16-3-2018 - M.S. SANKLECHA, SANDEEP K. SHINDE, JJ. Mr. Deepak Trakshawala i/by. Mr. V.S. Hadade, Advocate for the petitioner. Mr. P.C. Chhotaray, Advocate for the respondent. P.C. :- 1. This petition under Article 226 of the Constitution of India challenges an order dated 29th May, 2017 passed by the Chief Commissioner of Income-Tax. By the impugned order dated 29th May, 2017 the petitioner's application under Section 220(2A) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer, the undisputed position before us is that, a copy of the report as received from the Assessing Officer was also furnished to the petitioner-Assessee. It was only thereafter, that the petitioner was heard and the impugned order dated 29th May, 2017 was passed. 4. The impugned order dated 29th May, 2017 considers the three ingredients which have to be cumulatively satisfied (not disputed by the petitioner) before waiver of interest, under Section 220(2A) of the Act, can be granted as under :- A) Payment of such amount has caused or would cause genuine hardship to the assessee. B) Default in the payment of the amount on which interest was payable was beyond the control of the assessee. C) The assessee has c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and thus non-payment of the tax was on account of genuine hardship. As corollary to the first, the non-payment of interest was for circumstances beyond the control of the assessee and that the petitioner has always co-operated with the assessment and recovery proceedings. Besides, reliance was placed upon the decisions of the Madras High Court in the case of J. Jayalalitha v. Commissioner of Income-Tax and Others Vol. 244 ITR (Mad) page 74 and of the Apex Court in B.M. Malani V. Commissioner of Income- Tax and Another, reported in [2008] 306 ITR 196 (SC). 7. We find that the demand of taxes on which interest is now payable, relates to the block period 1st January, 1985 to 24th August, 1995. This demand was caused as a conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay the dues of the firm even when they are possessed of funds would dis-entitle the petitioner to any reliefs under Article 226 of the Constitution of India. 8. It is an undisputed fact that the tax payable is in respect of the period 1985 to 1995. The petitioners have chosen not to pay the tax even though it was conscious of the fact that in case it fails in its challenge, it would have to pay the interest due on the same. Thus, it was a call which the petitioner took at a time when the demand was confirmed by the Assessing Officer. Moreover, the Commissioner, in the impugned order, also found that during the assessment proceedings, statements were made and retracted. This would by itself establish the fact that, full co-operation was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observing, in the case of B.M. Malani (supra), the issue was restored to the Assessing Officer to reconsider the issue of genuine hardship. We find that, in this case, the petitioners have not pointed out any difficulty in the partners paying the amount of taxes. Further, in the facts arising in the present case, the principle that the person cannot take advantage of his own wrong would apply as the petitioner has failed to pay his taxes conscious of the fact that non-payment will be visited with interest, if its plea is not accepted in appeal. Thus, the above decision will have no application to the present facts. 11. Therefore, in the above view, we find that the view taken by the impugned order of Commissioner in the facts here ..... X X X X Extracts X X X X X X X X Extracts X X X X
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