Sheo Nandan Prasad. Vs.The Union of India, and anr. - Court Judgment

Excerpt:

[p. sathasivam ; h.l. gokhale, j.j.] - the indian penal code, 1860 section 302 - punishment for murder -- sunil yadav s/o musafir yadav was instituted. sunil yadav was instituted. on 29.04.1997, about 5:30 a.m., at nawada sadar hospital, si anil kumar gupta recorded the statement of sunil yadav s/o musafir yadav and on the basis of his statement fir no 12/97 was registered with govindpur p.s under sections 147, 148, 149, 323, 324, 307, 447 ipc against upendra yadav, rambalak yadav, basudev yadav, anil yadav, manager yadav, ganuari yadav, damodar yadav, suresh yadav, umesh yadav, muni yadav and naresh yadav. the charge-sheet bearing no. 12/97 was submitted in fir no. 11/97 p.s. govindpur, on 30.06.1997 against brahamdeo yadav, sunil yadav, darogi mahto, maho yadav, paro mahto, kuldeep yadav, sudhir yadav, bale yadav, shivan yadav and suraj yadav and sunil yadav who was later instituted. the charge sheet bearing no. 36/97 was also submitted in fir no. 12/97 p.s. govindpur, on 17.12.1997 against upendra yadav, rambalak yadav, basudev yadav, anil yadav, manager yadav, ganuari yadav, damodar yadav, umesh yadav, muni yadav and naresh yadav except suresh yadav s/o kesho yadav as he..........payment, or reduction in payment, of interest. such an order, in his submission, has to be passed in accordance with law, taking into account the facts and circumstances of each case, and by recording reasons in support of the order. he relies on the judgment of the supreme court in commissioner of income-tax v. anjum m.h. ghaswala and others (2001) 252 itr i. he also relies on the relevant circular dated 2.5.1994, which has been issued in terms of section 119 (2) (a) of the act. in other words, in his submission, the impugned order has been passed in complete oblivion of the circular.4. learned junior standing counsel has supported the impugned action and submits that the commission has no option but to impose interest in terms of section 139(8)(a) of the act. he next submits that no circular is on record as a result of which it is not possible for the respondents to verify applicability of one or the other circular in the present case. in any case, in his submission, the alleged circular orally relied on by learned counsel for the petitioner is dated 2.5.1994, whereas the present proceedings are with respect to the earlier assessment years.5. we have perused the materials on.....

Judgment:

1. This writ petition is directed against the order dated 22.6.1994, passed by the Settlement Commission (IT & WT), Additional Bench, Calcutta, in purported exercise of powers under Section 245 D (4) of the Income-Tax Act, 1961, (hereinafter referred to as the Act), whereby the order of assessment as per the prescribed procedure has been passed and also orders have been passed for payment of interest. The present writ petition is confined to that part of the impugned order whereby interest has been imposed on the petitioner.

2. It relates to assessment years 1985-86, 1986-87, 1987-88, 1988-89 and 1989-90. The petitioner is a dealer in food-grains. He approached the Settlement Commission in terms of Section 245C of the Act for assessment of his returns with respect to the said periods. The Settlement Commission passed the final order on 22.6.1994, and portion of which is impugned herein. As stated, learned counsel for the petitioner does not raise grievance with respect to the order of assessment which indeed is final under the provisions of the Act. The petitioner, however, raises a grievance with respect to the order passed by the Settlement Commission, whereby interest has been imposed. The relevant portion of the impugned order is reproduced herein below:

"7. INTEREST CHARGEABLE- Interest under section 139(8) of the Act shall be charged for 12 months in each of the assessment years 1985-86 to 1988-89. Interest chargeable as a result of this settlement under section 215/217 for those years is waived. Interest shall be charged in full as per law under sections 234A, 234B and 234C for assessment year 1989-90."

3. While assailing the validity of the impugned order, learned counsel for the petitioner submits that the Tribunal has passed order for interest in a mechanical manner. He has not considered the relevant circulars which permit non- payment, or reduction in payment, of interest. Such an order, in his submission, has to be passed in accordance with law, taking into account the facts and circumstances of each case, and by recording reasons in support of the order. He relies on the judgment of the Supreme Court in Commissioner of Income-Tax v. Anjum M.H. Ghaswala and others (2001) 252 ITR I. He also relies on the relevant circular dated 2.5.1994, which has been issued in terms of Section 119 (2) (a) of the Act. In other words, in his submission, the impugned order has been passed in complete oblivion of the circular.

4. Learned Junior Standing Counsel has supported the impugned action and submits that the Commission has no option but to impose interest in terms of Section 139(8)(a) of the Act. He next submits that no circular is on record as a result of which it is not possible for the respondents to verify applicability of one or the other circular in the present case. In any case, in his submission, the alleged circular orally relied on by learned counsel for the petitioner is dated 2.5.1994, whereas the present proceedings are with respect to the earlier assessment years.

5. We have perused the materials on record and considered the submissions of learned counsel for the parties. The issues are concluded by the authoritative pronouncement of the Supreme Court in Commissioner of Income Tax vs. Anjum M.H. Ghaswala and others(supra), wherein it has been held that the Settlement Commission is bound to impose tax in terms of Section 139(8)(a) of the Act. It can consider the petitioners plea for waiver or reduction in interest if the Board has issued a circular in terms of Section 119(2) (a) of the Act. The present Bench had the occasion of applying the said judgment of the Supreme Court in C.W.J.C. No.4152 of 1995 (Janki Sao v. Union of India & Ors.), and was dismissed by order dated 31.8.2010. It has been held by this Court that no such notice in terms of Section 119(2) (a) of the Act has been issued by the Board of Directors Taxes at the relevant point of time. Just the same situation occurred in the present proceedings where no circular has been placed on record to satisfy us that any such circular in terms of section 119(2)(a) of the Act was in force at the relevant point of time. In that view of the matter, the order passed by the Settlement Commission regarding realization of interest is consistent with the law governing the issue.

6. The writ petition is dismissed. In the facts and circumstances of the case, there shall be no order as to costs.