K. GOVINDAN & SONS VS UNION OF INDIA
2001 P T D 2671
[240 I T R 887]
[Kerala High Court (India)]
Before P. V. Narayanan Nambiar, J
K. GOVINDAN & SONS
versus
UNION OF INDIA and others
O.P. No.5088 of 1993‑E, decided on 14/12/1998.
Income‑tax‑‑‑
‑‑‑‑Return‑‑‑Advance tax‑‑‑Interest‑‑‑Delay in filing return‑‑‑Deficiency in paying advance tax‑‑‑Waiver or reduction of interest‑‑‑Sections 139(8) & 215 deal with different situations‑‑‑Reduction of interest under S.215‑‑‑No reduction or waiver of interest under S.139(8)‑‑‑Order was valid‑‑‑Indian Income Tax Act, 1961, Ss. 139 & 215‑‑‑Constitution of India, Art. 226.
Interest is payable under section 139(8) of the Income Tax Act, 1961, for delay in filing the return and interest under section 215 is payable for deficiency in payment of advance lax. The two sections deal with entirely different fact situations. The levy of interest in respect of two different lapses is permissible under law.
Held, that, in the instant case, the discretion vested in the Deputy Commissioner of Income‑tax had been exercised by him. Interest was payable from April 1, 1988, till October 25, 1992. But the interest under section 215 was claimed only up to January 31, 1990. Interest under section 139(8) had not been reduced or waived. However, substantial benefit had been given to the petitioner. The order was valid.
V.V. Surendran for Petitioner.
P.K.R. Menon and N.R.K. Nair for Respondent
JUDGMENT
P.V. NARAYANAN NAMBIAR, J.‑‑‑The petitioner is an assessee of income‑tax under the jurisdiction of the third respondent, Deputy Commissioner of Income‑tax (Assessment), Calicut.
The petitioner approached the second respondent, Settlement Commissioner of Income‑ tax, Madras, for settlement of their income tax cases for the assessment years 1985‑86 to 1988‑89. On hearing him and considering the entire facts and circumstances of the case, the second respondent passed Exh. P‑2 order. As per Exh: P‑2 order, consequential orders are directed to be passed by the third respondent regarding interest. In paragraph 11 of the Exh. P‑2; it is seen that interest under sections 139(8) of the Income Tax Act, 1961 (hereinafter referred as 'the Act"), wherever leviable will be levied according to law and interest raider section 215/217 of the Act will be levied from the due date for a period of six months from the date of tiling the returns of income. Consequent to Exh.‑ P‑2, the third respondent passed Exh. P‑3 order assessing interest under sections 139(8) and 215/217 of the Act. The petitioner who is aggrieved filed Exh. P‑5 'representation before the second respondent in which he sought for modification regarding interest levied which was rejected as per exhibit P‑6. Exh. P‑6 is under challenge.
Counsel for the petitioner attempted to impress upon this Court that Exh. P‑3 order is bad inasmuch as there is overlapping of the period for which interest is ordered to be paid under sections 139(8) and 215/217 of the Act. He also finds fault with the second respondent for treating Exh. P‑5 petition as an application for review. On the other hand, it should have been treated as an application for correction of Exh. P‑2 order, contends counsel.
Interest is payable under section 139(8) for delay in tiling the return and interest under section 215 is payable for delay in payment of advance tax. The two sections deal with entirely' different fact situation. The interest, levied in respect of two different lapses is permissible under law. Counsel for the respondent brought to my notice that the discretion vested in the third respondent has been exercised by him as could be seen from exhibit P‑3. He points out that interest was payable from April 1, 1988 till October 25, 1992, the date on which exhibit P‑2 was passed. But interest under section 215 of the Act is claimed only up to January 31; 1990. Thus, it is contended that substantial benefit has been given to the petitioner. .
Though there is no power for the second respondent to review its own orders, the application was considered on the merits also. In the circumstances, I cannot find fault with the second respondent for not treating the application as one, for correction of the mistake crept in exhibit P‑2 order.
In view of what is stated above, the original petition fails and it is accordingly dismissed.
M.B.A/392/FC ?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.