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TMI Blog1990 (8) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 for the assessment year 1978-79. It is pertinent to mention that interest under section 139(8) is chargeable for not Ming the return of income within the time prescribed under the Act whereas interest under section 217 is chargeable for not filing the estimate of advance tax payable under section 212(3) of the Income-tax Act, 1961. There is no dispute that the returns for the two years were not filed in time and that the petitioner had also not filed the estimate of advance tax payable by it under section 212(3). Interest under both sections was, thus, chargeable and was in fact charged. Under rules 40 and 117A of the Income-tax Rules, there is a provision for waiver and/or reduction of interest charged or chargeable under section 217 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecting Assistant Commissioner considers that the circumstances are such that a reduction or waiver of the interest payable under section 215 or section 217 is justified." " 117A. Reduction or waiver of interest payable under section 139. The Income-tax Officer may reduce or waive the interest payable under section 139 in the cases and in the circumstances mentioned below, namely : - . . . (v) any case in which the assessee produces evidence to the satisfaction of the Income-tax Officer that he was prevented by sufficient cause from furnishing the return within time: Provided that. . . " Undoubtedly, the Income-tax Officer has discretion both under rule 40 and rule 117A to reduce or waive interest under section 139(8) and/or interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever be reasonably entertained. However, the High Court cannot reappreciate the evidence itself as an appellate court or correct the error of fact (not going to jurisdiction) even if apparent on the ground that the evidence on which it was based was not satisfactory or sufficient. In other words, the court in writ jurisdiction is not to interfere with or reverse the conclusion of the Tribunal, if the conclusion is a possible conclusion. It cannot substitute its decision for that of the Tribunal. It can, of course, interfere only if the conclusion arrived at by the Tribunal is unreasonable not in the sense that the court considers it to be unreasonable but that it is what the court considers is a conclusion which no reasonable person could h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent income is likely to exceed the amount specified in sub-section (2) of section 208, send to the Income-tax Officer an estimate of (i) the current income, and (ii) the advance tax payable by him on the current income calculated in the manner laid down in section 209, and shall pay such amount of advance tax as accords with his estimate on such of the dates applicable in his case under section 211-as have not expired, by instalments which may be revised according to sub-section (2)". In order to bring its case within rule 40(5), the argument advanced was that, in the circumstances mentioned earlier, the petitioner bona fide believed that it had no obligation to file the estimate under section 212(3) and that would be a circumstance j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77-78 and exceeding Rs. 5,00,000 for the assessment year 1978-79. The estimates were to be filed on March 15, 1977, and March 15, 1978, when 1 1/2 months of the previous year were already over. Therefore, the question of expectation could not possibly arise. The conclusion of the Commissioner in this behalf as to the absence of circumstances justifying reduction or waiver of interest under section 217 is, thus, justified. In any event, it is a conclusion of fact based on cogent material. Therefore, this court will not like to review it in its writ jurisdiction. The same cannot, however, be said of interest charged under section 139(8). It is pertinent to mention that interest under section 139(8) was charged for both the assessment years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner that the petitioner was not prevented by sufficient cause from Ming its return in time for the assessment year 1978-79 in contradistinction to what he held for the assessment year 1977-78 is unwarranted Accordingly, his order rejecting the application of the petitioner for reduction and/or waiver of interest under section 139(8) cannot be sustained and is hereby set aside. It may be mentioned that counsel for the petitioner had relied upon our court's judgment in the case of Patel Aluminium Pvt. Ltd. v. Miss K. M. Tawadia, ITO [1987] 165 ITR 99, the Gujarat High Court decision in the case of Patel Engineering Co. Ltd. v. C. B. Rathi [1985] 151 ITR 542 and the Rajasthan High Court decision in the case of CIT v. Golcha Properti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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