Bombay High Court
Comunidade Of Chicalim vs Income-Tax Officer And Others on 30 August, 1991
Equivalent citations: [1992]196ITR170(BOM)
JUDGMENT K. Sukumaran, J.
1. The petitioner invokes the extraordinary jurisdiction of this court seeking to quash by a writ of certiorari the order passed by the second respondent, Deputy Commissioner of Income-tax, on December 17, 1990 (annexure P-7), by which he has declined the request of the petitioner to waive the interest imposed under section 139(8) and section 217(1)(b) of the Income-tax Act, 1961, under the assessment order passed by the first respondent, Income-tax Officer, on March 26, 1990 (annexure P-1), in relation to the assessment year 1987-88.
2. The writ petition was filed on June 24, 1991, raising four grounds dealing with the interpretation of the statutory provisions and contending that the Income-tax Officer and the Deputy Commissioner had overlooked legal implications of the statutory provisions and the fact of pendency of an appeal on merits before the Tribunal. By an amendment dated July 10, 1991, an additional ground was raised, which reads thus :
"The impugned order has been passed in breach of the principles of natural justice and fair play".
3. In its return filed before the Income-tax Officer, the petitioner asserted its status as that of a local authority, and as such claimed exemption under section 10(20) from the provisions of the Act. The claim was rejected by the Income-tax Officer. The total income was computed in the sum of Rs. 7,87,840 and the tax thereon was fixed at Rs. 3,73,170. Interest under section 139(8) in the sum of Rs. 1,35,248 as also under section 217(1)(b) in the sum of Rs. 1,63,231 were also payable under that order.
An appeal against the order before the Commissioner was dismissed by order dated October 31, 1990 (annexure P-2). It was mentioned therein :
"... In spite of four opportunities, the appellant has not argued the case."
The appellate authority further observed :
"... Probably, there is nothing to argue since the matter had already been decided by the Income-tax Appellate Tribunal, Pune Bench, against the appellant..."
4. The matter was taken up in further appeal before the Tribunal. Relief claimed in clause 14 is somewhat significant which reads thus :
"To set aside the interest levied by the said Income-tax Officer under section 139(8) and section 217(1)(b) of the Income-tax Act of alternatively direct the Income-tax Officer to consider the question of waiving the said interest on the facts and in the circumstances of the case and in law."
The appeal has not been disposed of by the Tribunal.
5. Notwithstanding the fact that the specific relief in relation to the liability for interest is challenged in appeal before the Tribunal, the petitioner, by its communication dated October 5, 1990 (annexure P-4) sought from the Income-tax Officer, waiver of the interest imposed under section 139(8) and section 217(1)(b). A further detailed representation was also forwarded to the Income-tax Officer under communication dated November 30, 1990 (annexure P-5). On the same day, the petitioner addressed another communication (annexure P-6) to the second respondent, Deputy Commissioner. The contentions of the petitioner had been exhaustively dealt with in that representation. A personal hearing also had been sought. (We have noted a communication from the Government of Goa to the Assistant Commissioner of Income-tax dated July 18, 1989, requesting him to withdraw the notice issued to the petitioner. It may not be proper for the State Government to interfere with the functioning of a quasi-judicial authority by a communication of that nature. This court has condemned such a practice in similar situations.)
6. By the impugned order, the second respondent held that the petitioner was not prevented by sufficient or reasonable cause either in the matter of filing return or paying advance tax instalments. The legal position had been made clear by the order of the Tribunal way back in September, 1985. The return was filed only on January 29, 1990. The assessment year is 1987-88, and during the previous assessment year 1986-87, information about the legal obligation on the basis of the law as communicated by the order of the Tribunal was available to the petitioner. The conclusion has been rested on the above solid grounds.
7. The petitioner has an internal remedy under the Income-tax Act. It is open to the assessee to move the Commissioner of Income-tax under section 273A. Even otherwise, a revision under section 264 would be available. When such an internal remedy is available, it is not expenditure for this court to exercise powers under article 226 of the Constitution in the light of the settled principles of law.
8. Counsel for the petitioner submitted that an exception to the above proposition is engrafted when there is violation of the principles of natural justice. We are not impressed by this argument. Once the computation of income is made and a default is detected in the filing of the return and the payment of advance tax, levy of interest gets attracted almost automatically. The rigour of the provisions has been later removed by legislative intervention by conferring on the authorities a discretion to waive it when circumstances justify the same. It is, therefore, up to the party seeking the waiver to make out a case for a departure from the normal rule of imposition of interest. That was attempted before the second respondent in an elaborate manner. When that has been duly considered, and a cogent decision has been rendered, the assessee cannot possibly ask for more. A personal hearing is not an essential concomitant to the principles of natural justice. (See Indian Telephone Industries Cooperative Society Ltd. v. ITO [1972] 86 ITR 566). In any event, in the circumstances of the present case, a personal hearing would not additionally subserve any purpose. The second respondent was, therefore, justified in passing the impugned order. The amended ground, we may point out, is extremely vague, and cannot be entertained in the absence of particulars in the pleadings.
9. There is yet another ground on which we should decline jurisdiction under article 226 of the Constitution. As noted earlier, the very relief has been claimed in the appeal which is now pending before the Tribunal. The petitioner cannot be permitted to have many-pronged attempts for getting the identical relief. Even on merits, we cannot find any error of law in the impugned order warranting interference by this court under article 226 of the Constitution.
10. The writ petition thus fails and is dismissed.