Dinesh Sharma Vs. Chief Commissioner of Income Tax - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. order1. this petition seeks quashing of order dt. 18th dec, 2009, annex. p1, passed by the chief cit, rejecting application for waiver of interest under section 158bfai(a) of the it act, 1961 (for short, 'the act') for the assessment years covering assessing years 1988-99.2. after a search was carried out at the premises of the assessee on 20th nov., 1997, notice under section 158bc of the act was issued, requiring the assessee to file return. accordingly, return dt. 27th aug., 1999 was filed after expiry of the statutory period. block assessment was completed and undisclosed income was assessed. the assessee approached the settlement commission. the commission disposed of the matter under section 245d(4) of the act on 12th dec, 2003. as regards interest, it was held that the assessee will be liable to pay interest under section 158bfa(1)(a) of the act. the assessee filed an application for waiver of interest before the chief cit relying upon circular issued by the cbdt dt. 6th jan., 2003. the chief cit dismissed the application by holding that in view of provisions of section 245-i, the order of the commission could not be amended and the chief cit could not waive interest contrary to the decision of the commission that the assessee was liable to pay interest.3. we have heard learned counsel for the petitioner.4. main contention put forward by learned counsel is that waiver of interest does not amount to modification of the decision of the commission. power of waiver is available only with the chief cit and is exercised after liability to pay interest has been crystallised. reliance has been placed on judgment of gujarat high court in smt. kherunissa allibhai v. cit : (1978) 113 itr 443 (guj) wherein dealing with provisions of section 273a of the act for waiver of penalty, it was observed that even if liability to pay was not disputed, the waiver was permissible. similar observations have been made in the judgment of bombay high court in b.r. sound-n-music v. o.p. bhardwaj and anr. : (1988) 70 ctr (bom) 43 : (1988) 173 itr 433 (bom). reliance has also been placed on judgment of the hon'ble supreme court in cit v. anjum m.h. ghaswala and ors. : (2001) 171 ctr (sc) 1 : (2001) 252 itr 1 (sc), wherein it was observed that provision for waiver could be available to the assessee who has approached the settlement commission, for which purpose the settlement commission could exercise power of an it authority under the act though the commission was not otherwise subordinate to the board.5. we are unable to accept the submissions. the working of the commission under the scheme of law is sui generis and is not at par with the assessing authorities. even though after the liability to pay interest is crystallised, it may be permissible to waive interest in accordance with the circular by an it authority, the said power cannot be exercised by any other authority in respect of the matter dealt with by a commission, particularly when the commission expressly directs levy of interest. even if the commission may be able to waive of the interest, if so provided under a particular circular, such power cannot be exercised by any other authority in the matter dealt with by the commission. we, thus, do not find any infirmity with the view taken by the chief cit in rejecting the application of the assessee.6. learned counsel for the petitioner, however, argued that the petitioner could approach the commission itself for the relief.7. we do not express any opinion in this regard. if the petitioner has any such legal right to approach the commission, it can take such remedy in accordance with law.8. the petition is disposed of.

Judgment:
ORDER

1. This petition seeks quashing of order dt. 18th Dec, 2009, Annex. P1, passed by the Chief CIT, rejecting application for waiver of interest under Section 158BFAI(a) of the IT Act, 1961 (for short, 'the Act') for the assessment years covering assessing years 1988-99.

2. After a search was carried out at the premises of the assessee on 20th Nov., 1997, notice under Section 158BC of the Act was issued, requiring the assessee to file return. Accordingly, return dt. 27th Aug., 1999 was filed after expiry of the statutory period. Block assessment was completed and undisclosed income was assessed. The assessee approached the Settlement Commission. The Commission disposed of the matter under Section 245D(4) of the Act on 12th Dec, 2003. As regards interest, it was held that the assessee will be liable to pay interest under Section 158BFA(1)(a) of the Act. The assessee filed an application for waiver of interest before the Chief CIT relying upon circular issued by the CBDT dt. 6th Jan., 2003. The Chief CIT dismissed the application by holding that in view of provisions of Section 245-I, the order of the Commission could not be amended and the Chief CIT could not waive interest contrary to the decision of the Commission that the assessee was liable to pay interest.

3. We have heard learned Counsel for the petitioner.

4. Main contention put forward by learned Counsel is that waiver of interest does not amount to modification of the decision of the Commission. Power of waiver is available only with the Chief CIT and is exercised after liability to pay interest has been crystallised. Reliance has been placed on judgment of Gujarat High Court in Smt. Kherunissa Allibhai v. CIT : (1978) 113 ITR 443 (Guj) wherein dealing with provisions of Section 273A of the Act for waiver of penalty, it was observed that even if liability to pay was not disputed, the waiver was permissible. Similar observations have been made in the judgment of Bombay High Court in B.R. Sound-N-Music v. O.P. Bhardwaj and Anr. : (1988) 70 CTR (Bom) 43 : (1988) 173 ITR 433 (Bom). Reliance has also been placed on judgment of the Hon'ble Supreme Court in CIT v. Anjum M.H. Ghaswala and Ors. : (2001) 171 CTR (SC) 1 : (2001) 252 ITR 1 (SC), wherein it was observed that provision for waiver could be available to the assessee who has approached the Settlement Commission, for which purpose the Settlement Commission could exercise power of an IT authority under the Act though the Commission was not otherwise subordinate to the Board.

5. We are unable to accept the submissions. The working of the Commission under the scheme of law is sui generis and is not at par with the assessing authorities. Even though after the liability to pay interest is crystallised, it may be permissible to waive interest in accordance with the circular by an IT authority, the said power cannot be exercised by any other authority in respect of the matter dealt with by a Commission, particularly when the Commission expressly directs levy of interest. Even if the Commission may be able to waive of the interest, if so provided under a particular circular, such power cannot be exercised by any other authority in the matter dealt with by the Commission. We, thus, do not find any infirmity with the view taken by the Chief CIT in rejecting the application of the assessee.

6. Learned Counsel for the petitioner, however, argued that the petitioner could approach the Commission itself for the relief.

7. We do not express any opinion in this regard. If the petitioner has any such legal right to approach the Commission, it can take such remedy in accordance with law.

8. The petition is disposed of.