IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 WP(C).No. 21068 of 2005(G) -------------------------- PETITIONER: ------------ A.ABOOBACKER, M/S.PUPULAR CARS, EDARICODE, KOTTACKAL, MALAPPURAM. BY ADV. SRI.T.M.SREEDHARAN SMT.C.K.SHERIN RESPONDENTS: ------------- 1. THE CHIEF COMMISSIONER OF INCOME TAX CENTRAL REVENUE BUILDING, I.S.PRESS ROAD, COCHIN-682 018. 2. THE INCOME TAX OFFICER, WARD-1, TIRUR. BY ADV. SRI.P.K.R.MENON,SR.COUNSEL,GOI(TAXES) FOR R2 & 3 SRI.GEORGE K. GEORGE, SC FOR IT FOR R2 & 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE APPLICATION FOR WAIVER OF INTEREST DATED 12.4.2004 SUBMITTED TO THE FIRST RESPONDENT. EXT.P2 TRUE COPY OF ORDER DATED 17.5.2005 VIDE NO. CC. CHN/W1/CLT-1/2004-05 RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- W.P.C. NO. 21068 OF 2005 -------------------------------------------- Dated this the 20th day of June, 2008 JUDGMENT Petitioner is challenging Ext.P2 whereunder the Commissioner of Income-tax declined to waive interest levied under Section 234A and B of the I.T. Act. Even though counsel for the petitioner contended that Ext.P2 is not tenable, standing counsel pointed out that Commissioner on examination of facts found that none of the conditions of the circular issued by the Board for waiver of interest is satisfied. There have been consistent decisions by several High Courts holding that waiver of interest should be strictly in accordance with the conditions of circular issued by the Board. Since petitioner has not satisfied the conditions for waiver, there is no scope for interference with Ext.P2. Even though counsel has stated that clause (e) of the Circular is satisfied in as much as voluntary return was filed, I find that when reassessment notice was issued under Section 148 the assessee, instead of filing return on due date, took 10 months to file a letter stating that his original return may be treated as return filed under Section 148. In 2 fact, the finding of the commissioner is that levy of interest is upto this date, treating the date of letter as the date of filing of return. Therefore no interference is called for in this matter. Another issued raised by counsel for the petitioner is that calculation of interest under Section 234B is not correct. This was not an issue raised before the Commissioner and therefore it cannot be considered in this Writ Petition. However, I leave it open to the petitioner to make an application for rectification of mistake if any committed in the levy of interest. Since this WP was pending, the Officer should entertain the rectification application if filed within one month from today, along with a copy of this judgment, and dispose of the same on merits. Reserving the above right, W.P. is dismissed. (C.N. RAMACHANDRAN NAIR) Judge kk 3