Karnataka High Court
H.M. Sathyanarayana Setty vs Chief Commissioner Of Income Tax ... on 25 February, 2004
Equivalent citations: (2004)189CTR(KAR)223, [2004]269ITR375(KAR), [2004]269ITR375(KARN), 2004 AIR - KANT. H. C. R. 1920, 2004 TAX LR 814, (2004) 269 ITR 375, (2004) 181 TAXATION 676, (2004) 139 TAXMAN 108
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. Shylendra Kumar, J.
1. In all these writ petitions the writ petitioners are assessees under the provisions of the IT Act, 1961 ('the Act' for short). The grievance of the petitioners is that though they had sought for certain relief from the operation of the provisions of Sections 234A and 234B of the Act, it has been denied to them.
2. Under Section 234A of the Act in respect of delayed filing of return, certain interest is levied and likewise, under the provisions of Section 234B of the Act, in respect of delayed payment of advance tax, the assesses is liable for payment of interest on the shortfall of the advance tax and for the delayed period. It is the case of the petitioners that they had sought for waiver of such levy under the provisions of Sections 234A and 234B of the Act by filing applications before the Chief CIT, Karnataka Area, the respondent herein and the request has been turned down even without as much being an order passed by the respondent nor the petitioners having been communicated with a copy of such order.
3. Sri. Alur, learned counsel appealing for the petitioner submits that the petitioners have been apprised only by a communication signed by a subordinate officer of the CIT intimating the petitioners that the CIT has rejected the applications as the petitioners did not qualify for the relief sought for in terms of the Board Notification dt. 23rd May, 1996.
4. A copy of the Board notification on which the petitioners have relied upon is produced as Annex.-C in W.P. No. 52448 of 2003. The submission of Sri. Alur, learned counsel for the petitioner relying upon this notification is that when the petitioners are entitled to know the outcome of their applications claiming relief in terms of paras 2(a) and 2(b) of this notification, the minimum that is required on the part of the respondent CIT is to furnish them with an order indicating as to whether they can be given such a relief or not and if no such relief is given, the reasons for which the relief is denied to them.
5. Learned counsel, submits that the relevant portion of this notification reads as under:
"IT Act, 1961: Notification under Section 119(2(a) : Reduction or waiver of penal interest for late filing of return of income, etc. : Authorisation of powers to Chief CITs and Directors-General (Investigation).
Notification No. ... dt. 23rd May, 1996.
In exercise of the powers conferred under Clause (a) of Sub-section (2) of Section 119 of the IT Act, 1961, the CBDT, hereby direct that the Chief CIT and Director-General of Income-tax may reduce or waive interest charged under Section 234A, or Section 234B or Section 234C of the Act in the classes of cases or classes of income specified in para 2 of this order for the period and to the extent the Chief CIT/Director-General of Income-tax deem fit. However, no reduction or waiver of such interest shall be ordered unless the assessee has filed the return of income for the relevant assessment year and paid the entire tax due on the income as assessed except the amount of interest for which reduction or waiver has been requested for. The Chief CIT or the Director General of Income-tax may also impose any other conditions deemed fit for the said reduction or waiver of interest.
2. The class of incomes or class of cases in which the reduction or waiver of interest under Section 234A or Section 234B or, as the case may be, Section 234C can be considered, are as follows :
(a) Where during the course of proceedings for search and seizure under Section 132 of the IT Act, or otherwise, the books of account and other incriminating documents have been seized and for reasons beyond the control of the assessee, he has been unable to furnish the return of income for the previous year during which the action under Section 132 has taken place, within the time specified in this behalf and the Chief CIT or, as the case may be, Director-General is satisfied having regard to the facts and circumstances of the case that the delay in furnishing such return of income cannot reasonably be attributed to the assessee.
(b) Where during the course of search and seizure operation under Section 132 of the IT Act, cash is seized which is not allowed to be utilised for payment of advance tax instalment or instalments as they fall due after the seizure of cash and the assessee has not paid fully or partly advance tax on the current income and the Chief CIT or the Director-General is satisfied that the assessee is unable to pay the advance tax."
6. Petitioners have not been furnished even a copy of the order passed by the CIT and it is under such circumstances that these petitioners have approached this Court seeking for issue of a writ in the nature of mandamus to direct the respondent to furnish the petitioners a copy of the orders passed by the respondent indicating the reasons for denial of the relief to the petitioners, so that they can pursue further action if any for getting such relief.
7. Sri. M.V. Seshachala, learned standing counsel appearing for the respondents points out that in the first instance petitioners have no right in the matter; that they are not persons who qualify or satisfy the conditions stipulated in the notification referred to above issued by the Board and that the power conferred on the CIT is a power which he can exercise only under the circumstances and situations mentioned in the notification itself and not otherwise. Learned counsel points out that it is not even the case of the petitioners that the petitioners squarely come within the requirement of the notification; that what is being pleaded is that the situation and the circumstances in which the petitioners were placed is more or less similar to the circumstances indicated in the notification and as such petitioners have no right even under the notification to claim for the relief that they had sought for. Learned counsel submits that the order rejecting petitioners' request is one passed by the CIT but is communicated under the seal and signature of an Asstt. CIT acting on behalf of the CIT.
8. A writ of mandamus can be issued if the petitioner has a legal right in his favour and there is inaction on the part of a public authority who has a corresponding obligation to give effect to the right and who is duty bound to perform a public duty. In the instant case, petitioners' case is not even that they qualify as per the notification for claiming the relief that is extended under the notification. It is not within the hands or power of a Chief CIT to extend a benefit to an assessee which is not given or conferred on him under the very notification. It is not even the assertion of any of these petitioners that they squarely come or fall within the scope of the notification for claiming the relief. Under such circumstances, if the CIT has conveyed to the petitioners that he is unable to act in the matter, no exception can be taken. No legal right of the petitioners is involved nor there is any inaction on the part of the respondent authority in the matter of such right. In fact, the CIT could not have entertained the application for granting any relief as he does not have the power to extend such relief to persons like the petitioners in terms of the notification.
9. There is no occasion for this Court to interfere in a matter of this nature. It is open to the petitioners to pursue such remedies as are available to them under law.
10. Petitions are dismissed.