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M/S KELVINATOR OF INDIA LTD. Vs. THE COMMISSIONER OF INCOME TAX & ORS
September, 02nd 2013

WPC 1113/1991 Page 1 of 17
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 23.08.2013
+ W.P.(C) 1113/1991
M/s KELVINATOR OF INDIA LTD. ... Petitioner
versus
THE COMMISSIONER OF INCOME TAX & ORS … Respondents
Advocates who appeared in this case:
For the Appellant : Mr Ajay Vohra with Ms Kavita Jha and
Mr Vaibhav Kulkarni
For the Respondent : Mr Sanjeev Sabharwal, Sr Standing Counsel
CORAM:-
HON’BLE MR JUSTICE BADAR DURREZ AHMED, (ACTING
CHIEF JUSTICE)
HON’BLE MR JUSTICE R.V.EASWAR
JUDGMENT
BADAR DURREZ AHMED, ACJ


1. The only issue which arises for consideration in this writ petition is
whether the petitioner is entitled to waiver of interest levied under section
215 of the Income-tax Act, 1961 (hereinafter referred to as ‘the said
Act’). The petitioner had moved an application for waiver of interest
under Rule 40 of the Income-tax Rules, 1962 (hereinafter referred to as
‘the said Rules’) which had been rejected by the Deputy Commissioner of
Income-tax by an order dated Nil communicated through letter datedWPC 1113/1991 Page 2 of 17
07.09.1989, the relevant assessment year being 1985-86. The petitioner
preferred a revision petition under section 264 against the said order
before the Commissioner of Income-tax who, partly allowed the revision
petition by an order dated 06.11.1990, giving relief of waiver of interest
for a period of four months. The petitioner has also challenged Circular
No. 492 dated 21.07.1987 issued by the Central Board of Direct Taxes on
the subject of waiver of interest under rule 40 (1) of the said Rules as
being ultra vires of the Act and/or of the said Rules.


2. Before we set out the submissions of the parties, it would be
necessary to note the sequence of events.
3. On 29.07.1985 the petitioner filed its return of income for the
assessment year 1985-86 declaring an income of Rs.3,61,87,550/- and
paid the balance tax (over and above the advance tax already paid earlier)
by way of self assessment tax under section 140A of the said Act.
Thereafter, the petitioner filed a revised return of income on 13.01.1986
declaring an income of Rs.3,81,39,990/- on which a further payment of
Rs. 11,27,534/- was made under section 140A of the said Act.
4. Thereafter, nothing happened till 09.06.1987 when the assessing
officer issued the notice under section 143(2) to the petitioner with regard
to the assessment for the assessment year 1985-86. It will be clear that a
period of one year had elapsed from the filing of the original return on
28.07.1986. A period of one year had also elapsed from the filling of the
revised return on 12.01.1987.WPC 1113/1991 Page 3 of 17
5. After the issuance of the notice dated 09.06.1987 under section
143(2), the petitioner applied on 18.06.1987 for fixing a date of hearing
in September 1987. The assessing officer accordingly fixed 03.09.1987
as the next date of hearing in the assessment proceedings. Some details
were filed on 03.09.1987 and further hearing was adjourned to
14.11.1987. On that date, at the request of the petitioner, the assessment
proceedings were adjourned to 10.12.1987.


6. Thereafter, while the assessment proceedings were going on, the
petitioner filed a second revised return on 18.01.1988 declaring an
income of Rs. 4,47,54,650/- on which a further payment of tax of
Rs.38,39,964/- was made under section 140A of the said Act. The filing
of the second revised return necessitated the issuance of a fresh notice
under section 143(2), which was issued by the assessing officer on
20.01.1988. This was followed by the assessment order under section
143(3) on 18.02.1988. The total income of the assessee was assessed at
Rs. 6,89,44,449/- on which interest under section 215 of the said Act was
charged in the amount of Rs. 52,14,136/-. However, the petitioner had
taken the matter in appeal and ultimately the income of the assessee after
giving appeal effect was computed at Rs. 4,83,90,480/- and the interest
under section 215 had been computed at Rs. 31,85,806/-. It would be
relevant to mention at this point that the interest under section 215 had
been computed for the entire period from 01.04.1985, that is, from the 1st
of April next following the financial year 1984-85 up to the date of theWPC 1113/1991 Page 4 of 17
regular assessment, i.e., 18.02.1988. This was for a full period of 35
months.


7. It is, thereafter, that the petitioner had moved the above mentioned
application for waiver of interest under rule 40 of the said Rules. That
application was rejected by the Deputy Commissioner of Income-tax.
Thereafter, the petitioner filed the said revision application under section
264 before the Commissioner of Income-tax, who, by virtue of the
impugned order dated 06.11.1990, gave part relief to the petitioner.
8. From the impugned order dated 06.11.1990 it will be apparent that
the petitioner sought waiver under rule 40(1) as also under rule 40(5).
Rule 40 of the said Rules, at the relevant time, read as under:-
“40. Waiver of interest. – The Income-tax Officer may
reduce or waive the interest payable under section 215 or
section 217 in the cases and under the circumstances
mentioned below, namely: —
(1) When the relevant assessment is completed more
than one year after the submission of the return, the
delay in assessment not being attributable to the
assessee.


(2) Where a person is under section 163 treated as an
agent of another person and is assessed upon the
latter's income.
(3) Where the assessee has income from an unregistered
firm assessed under the provisions of clause (b) of
section 183.WPC 1113/1991 Page 5 of 17
(4) Where the previous year is the financial year or any
year ending about the close of the financial year and
large profits are made after the 1st March (or the 15th
March in cases where the proviso to section 211
applies), in circumstances which could not be
foreseen.
(5) Any case in which the Inspecting Assistant / Deputy
Commissioner considers that the circumstances are
such that a reduction or waiver of the interest payable
under section 215 or section 217 is justified.”
9. Insofar as the claim of waiver under rule 40 (5) was concerned, the
Commissioner had noted the petitioner’s following reasons for the
difference between the total income assessed and the income shown in
the estimates, which, according to the petitioner, could not have been
forseen by the petitioner:-
(i) Sales tax payable disallowed u/s 43B Rs. 100.18 lakhs
(ii) Disallowance of depreciation and
investment allowance on account of
retrospective amendment of section 43(1) by
the Finance Act, 1986.
Rs. 38.62 lakhs
(iii) Excise Duty reconcilable account which had
resulted in excess debit of Excise Duty to
the profit and Loss A/c only at the time of
finalisation of accounts.
Rs. 197.44 lakhs
(iv) Excise Duty refund accrued during the year
but included in the Profit & Loss A/c for
subsequent year, for which adjustment was
made while finalising the account
Rs.36.10. lakhs
(v) Disallowance of depreciation and
investment allowance on reinstated
machinery
Rs.4.64 lakhsWPC 1113/1991 Page 6 of 17
10. Thereafter the Commissioner came to the conclusion that this was
not a case where discretion for waiver of interest could be exercised
under rule 40(5) of the said Rules. The reasoning adopted by the
Commissioner was as under:-


“At the first instance I would consider the points raised
by the assessee in the petition, which are obviously in
the context of clause (5) of rule 40 of the I.T. Rules.
This clause gives discretion to the DCIT to reduce or
waive interest in “any case” where the circumstances so
justify. The expression “any case” may imply that under
exceptional circumstances the DCIT has the power to
allow reduction or waiver of interest even in cases not
specifically covered by clauses (1) to (4). The case of
the assessee is that the estimate of advance tax filed by it
was a bonafide estimate and the additions to the income
listed at (i) to (v) in para 3 above, which have caused a
variation between the income shown in the estimate and
that finally assessed, could not be foreseen by it while
filing the estimate. In this connection it may be
mentioned that the addition at (i) above has been a
subject matter of appeal and in the order u/s 250 dated
7.11.1990, determining the total income at Rs.
4,83,90,480/-, this amount stands excluded. In this order
the interest u/s 215 has been charged only at Rs.
31,85,806/- and hence this addition/disallowance can no
more be the subject of consideration. It is true that
explanation 8 to section 43(1) was inserted by the
Finance Act, 1986 with retrospective effect from
1.4.1974 and consequently the claim for depreciation
and investment allowance had to be reduced on certain
machinery but then simultaneously deduction for
capitalised interest has been allowed in the assessment at
Rs. 11,03,582/-. The difference is too meagre to call for
any specific consideration of item (ii) above. The itemsWPC 1113/1991 Page 7 of 17
at (iii) and (iv) are admittedly the accounting mistakes of
the assessee and at this stage it is not possible to give
any categorical finding about the reasons for not taking
into consideration these amounts at the time of filing the
estimates of advance-tax. While proceeding on the
assumption that as a prudent person and with due
diligence the assessee should have taken into
consideration these amounts in filing the estimates of
advance tax, I would exclude these items from
consideration. The item at Sl. No. (v) is again too
meagre and, in any case, since the assessee had lost on
the issue in appeals in earlier years, atleast for filing the
estimate of advance tax it should have taken this amount
into consideration. To conclude I hold that this is not a
case where discretion for waiver of interest could be
exercised under clause (5) of rule 40 of the I.T. Rules.”
11. The petitioner had also urged before the Commissioner that in view
of rule 40(1) of the said Rules there should have been waiver of interest at
least for the period from 29.07.1986 to 18.02.1988. This argument was
advanced on the premise that the original return was filed on 29.07.1985
and the period of one year specified in rule 40(1) elapsed on 28.07.1986,
without the assessment being completed. In fact, no steps whatsoever
had been taken by the assessing officer during this period pursuant to the
filing of the return by the petitioner to complete the assessment.
Therefore, according to the petitioner, as the assessment not having been
completed within the period of one year after the submission of the return
was not on account of any delay attributable to the petitioner, the period
in excess of one year from the filing of the return ought not to be taken
into account while computing interest under section 215 of the said Act.WPC 1113/1991 Page 8 of 17
12. The Commissioner of Income-tax gave part relief to the petitioner.


It was held that the starting point of counting the period of one year
would be the date on which the first revised return (i.e., 13.01.1986) was
filed and not the date of the filing of the original return ( i.e., 29.07.1985).
Therefore, according to the Commissioner, the period of one year referred
to in rule 40(1) would commence on 13.01.1986 and end on 12.01.1987.
According to the Commissioner, waiver is to be given from the end of the
first year to the point of time from where the delay, if any, was
attributable to the assessee. In the opinion of the Commissioner, the
period between 12.01.1987 and 09.06.1987, when the assessing officer
issued the notice under section 143(2) of the said Act, was not
attributable to the assessee and, therefore, this period had to be excluded
for the purposes of computing interest under section 215 of the said Act.
It is only to this extent that the Commissioner of Income-tax gave relief
to the petitioner. However, for the rest of the period, that is, from
09.06.1987 to 18.02.1988, the Commissioner held it to be attributable to
the petitioner on account of the adjournments and the second revised
return filed by the petitioner on 18.01.1988. Therefore, the
Commissioner held that in the context of the provisions of rule 40(1) of
the said Rules there was a delay of four complete months in making the
assessment for which the assessee could not be held responsible and that
interest for this period of four months was liable to be waived straightway
under rule 40(1) of the said Rules. The Commissioner of Income-tax
concluded as under:-WPC 1113/1991 Page 9 of 17
“6. On a careful consideration of the facts and
circumstances of the case in its entirety and in view of
the above discussion I am of the opinion that the case is
not at all covered under clause (5) of Rule 40. The delay
in completion of the assessment after it was taken up by
the issue of a notice u/s 143 (2) on 9.6.1987 is generally
attributable to the assessee and as such it is not entitled to
waiver of interest for this period. However, the case is
partly covered under clause (1) of rule 40 to the extent
that there was a delay of four complete months in taking
up the assessment after the period of one year from the
date of filing the first revised return on 13.1.1986.
Accordingly, the waiver of interest for a period of four
complete months from 13.1.1987 to 9.6.1987 is ordered.
The DCIT is directed to give effect to this order.
7. The petition is partly allowed.”


13. At this juncture, it would be relevant to notice Circular No. 492
dated 21.07.1987. The said circular reads as under:-
“Circular No. 492, dated 21st July 1987
Subject: Clarification regarding Board’s Circular No.
12/66-IT(B) dated 9.6.1985- Waiver/
Reduction of interest-Section 215/217- Rule
40(1) of the Income-tax Rules, 1962.
Attention is invited to Board’s Circular No. 12/66-
IT(B) dated 9.6.1965 copy attached for ready reference.
It has been brought to the notice of the Board that
relying upon the example in the above circular, even in
cases where there is no delay attributable to the assessee
for completion of the assessment, waiver is limited only
up to the date of taking up of the case for assessment
beyond the period of the first year. Under rule 40(1) of
the Income-tax Rules, 1962, first a decision has to beWPC 1113/1991 Page 10 of 17
arrived at as to whether and if so to what extent the
delay in the completion of the assessment beyond the
first year is attributable to the assessee. After deciding
this, waiver should be given from the end of the first
year to the period, if any, from where the delay is
attributable to the assessee, and then the waiver should
extend up to the date of completion of the assessment.


Sd/- B. Nagarajan,
Director,
Central Board of Direct Taxes,
F. No. 400/24/87-IT (B)”
14. It was contended on behalf of the petitioner that the entire interest
amount ought to be waived on account of rule 40(5) and rule 40(1).
Insofar as the arguments under rule 40(5) are concerned, we feel that no
interference whatsoever is warranted, for the simple reason that the
consideration by the inspecting Assistant Commissioner/ Deputy
Commissioner was based upon his discretion which, of course, had to be
exercised in a judicial manner. This court in its jurisdiction under Article
226 of the Constitution of India does not sit as a court of appeal and it is
not so much concerned about whether the decision of the authority below
is right or wrong but whether the decision is legal or illegal. As observed
by this court in J.K. Synthetics Ltd. v. Commissioner Of Income Tax:
270 ITR 95 (Del), this being a petition under Article 226 of the
Constitution of India, we are not sitting as a Court of appeal and we
cannot substitute our views in place of those of the Deputy
Commissioner/ Commissioner. As long as the discretion vested in the
authorities below is exercised in a judicial manner, taking into accountWPC 1113/1991 Page 11 of 17
the relevant factors in an objective manner, no fault can be found with the
conclusions arrived by such authorities.
15. In fact the learned counsel for the petitioner did not lay much stress
on the arguments under rule 40(5) but focused his arguments on rule
40(1) of the said Rules. It was contended by him that the period of one
year indicated in rule 40(1) is to be considered from the date on which the
original return was filed, that is, from 29.07.1985 and not from the date
on which the revised return was filed (i.e. 13.01.1986). The contrary was
urged on the part of the learned counsel for the respondents. We have
already pointed out above that the Commissioner of Income-tax, in the
impugned order dated 06.11.1990 has taken the starting point as the date
of the filing of the revised return and not the date of filing of the original
return. In our view, the Commissioner has correctly taken the date of the
revised return as the starting point for computing the period of one year
referred to in rule 40(1) of the said Rules. It is obvious that the revised
return is filed by an assessee only when he discovers any omission or
wrong statement made in the initial return. Therefore, the period between
the filing of the original return and the filing of the revised return cannot
enure to the benefit of the assessee because the filing of the revised return
was necessitated on account of his omission or wrong statement made in
the original return. Therefore, the starting point for computing the period
of one year referred to in rule 40(1) would be the date on which the first
revised return was filed, that is, 13.01.1986.


16. It was next contended by the learned counsel for the petitioner thatWPC 1113/1991 Page 12 of 17
even if 13.01.1986 is taken as the starting point, the period of one year
therefrom elapsed on 12.01.1987. And, during that period the assessing
officer did nothing. In fact the assessing officer did nothing even
thereafter till 09.06.1987 when the notice under section 143(2) of the said
Act was issued. Thereafter, the assessment was completed within a span
of a little over eight months. It is obvious that if the assessing officer had
issued the notice under section 143(2) immediately or at least shortly
after the filing of the revised return on 13.01.1986, the assessment would
have been completed within the period of one year. According to the
learned counsel for the petitioner, this in itself is indicative of the fact that
there was no delay on the part of the petitioner and that the petitioner had
fully co-operated with the assessing officer in completing the assessment
proceedings.


17. On the other hand, the learned counsel for the revenue/respondents
submitted that the Commissioner had concluded that after 09.06.1987 the
delay in concluding the assessment was attributable to the petitioner and
this finding ought not to be interfered with by this court in exercise of its
extraordinary jurisdiction under Article 226 of the Constitution of India.
Reliance was placed on the decision of this court in J.K. Synthetics Ltd.
v. Commissioner Of Income Tax: 270 ITR 95 (Del), wherein this court
observed as under:-
“In the instant case, however, we find that, after examining
the material, the Commissioner, while passing the
impugned orders has specifically noted the findings that
there was delay which could be attributed to the assessee.
It is also required to be noted that the Commissioner whileWPC 1113/1991 Page 13 of 17
passing the order has also pointed out that for a particular
part of the period for which delay cannot be attributed to
the assessee, benefit has to be given and, therefore on the
facts, Commissioner has arrived at a conclusion. This
being a petition under article 226 of the Constitution of
India we are not sitting as a court of appeal. We cannot
substitute our views in place of those of the Commissioner.
The facts of C. W. No. 2009 of 1988 are clearly
distinguishable. There, the matter was remanded as there
was no specific finding recorded as to whether the delay
was attributable to the assessee or not. In the present case,
specific findings have been recorded. That being the case,
when the Commissioner has in exercise of jurisdiction
vested in him come to a particular conclusion on the facts
for reasons which are recorded in the impugned orders, it
would not be proper for us to interfere in exercise of our
writ jurisdiction.”


It may be noticed that in the above extract there is a reference to CW
2009/1988 which also happens to be a case of J.K. Synthetics Ltd. and
the said decision was reported in 265 ITR 411 (Del). That case has
however been distinguished in the later decision in 270 ITR 95 inasmuch
as in the earlier decision (265 ITR 411), the court had remanded the
matter as no specific finding had been recorded with regard to the
question of delay attributable to the assesseee. However, in the later
decision (270 ITR 95) this court noted that in that case there was a
specific finding that the delay was attributable to the assessee. It is for
this reason that this court, in 270 ITR 95, refrained from interfering with
the order passed by the authority below. We may point out that the
principle of law laid down in J.K. Synthetics Ltd v. CIT: 265 ITR 411
(Del) was however not disturbed, as it could not be by a Bench of co-WPC 1113/1991 Page 14 of 17
equal strength. In 265 ITR 411 this court after examining the provisions
of rule 40 observed as under:-
“From a bare reading of sub-rule (1) of rule 40, it is clear
that the twin conditions necessary for reduction or waiver of
interest under section 215 are: (i) that the assessment should
have been completed more than one year after the
submission of the return, and (ii) the delay in the assessment
is not attributable to the assessee. The discretion vested in
the Assessing Officer, under section 215(4) of the Act, read
with rule 40 is undoubtedly quasi judicial and is coupled
with a duty to consider whether the circumstances of the
case warrant waiver or reduction of interest. He is under an
obligation to objectively consider the circumstances and find
out whether the applicant is entitled to the waiver or
reduction. A mechanical consideration of the application
defeats the very purpose and object of the legislation to
grant relief to an assessee against the rigour of the
provisions for charging interest under section 215, in the
circumstances prescribed in rule 40. The language of rule
40(5), which is couched in wide terms, leaves little doubt
that the provisions contained in sub-section (4) of section
215 are benevolent. Therefore, when an assessment is
completed after the expiry of one year from the date of filing
of the return and an assessee applies for waiver/reduction of
interest charged under section 215 of the Act, what is
required to be seen is as to whether the assessee is
responsible for causing delay in completion of the
assessment. If it is found that it was on account of his
conduct that the assessment could not be completed within
the said period of one year, the interest charged under
section 215 may not be waived.”


(Underlining added)
The court also held as under:-WPC 1113/1991 Page 15 of 17
“Thus, the short question which arises for our
consideration is as to whether in the instant case, the
Income-tax Officer exercised the discretion vested in him
under rule 40, keeping in view the aforementioned
principles, by taking into consideration all the relevant
facts. Having given our serious consideration to the facts in
hand, we find that both the authorities have failed to
consider the assessee's application in its correct
perspective. In both the orders, we do not find even a
whisper indicating that the delay in completion of the
assessment within a period of one year was attributable to
the assessee.”


(Underlining added)
From the above extracts it is apparent that the question of delay
attributable to the assessee has to be considered in the context of an
assessment not being completed within the period of one year from the
date of filing of the return. In the facts of the present case it would mean
that the question to be addressed would be whether the petitioner/assessee
was responsible for any delay in completing the assessment within the
period of one year with effect from 13.01.1986 (i.e. the date on which the
first revised return was filed). We find that up to 12.01.1987, and, in fact,
up to 09.06.1987 the assessing officer did nothing. It is only on
09.06.1987 which is much beyond one year after 13.01.1986 that the
assessing officer issued the notice under section 143(2) of the said Act.
Therefore, within the period of one year with effect from 13.01.1986, no
delay could be attributable to the petitioner. That being the case, the
waiver of interest, in our opinion, would be in respect of not just the
period from 12.01.1987 to 09.06.1987 but for the period from 12.01.1987WPC 1113/1991 Page 16 of 17
to 18.01.1988. In other words, for the period commencing at the end of
one year from the date of filing the first revised return upto the date of
filing of the second revised return. We stop at the latter date because we
presume that the filing of the second revised return caused a delay in the
assessment and that is clearly attributable to the petitioner. To be clear,
the period 19.01.1988 to 18.02.1988 is taken as attributable to the
petitioner.
18. In the facts of the present case we find that after the issuance of the
notice under section 143(2) the assessment has been completed within a
little over eight months. Therefore, we are in agreement with the
submissions made by the learned counsel for the petitioner that had the
assessing officer been diligent enough and issued the notice under section
143(2) immediately or shortly after 13.01.1986, when the petitioner filed
the first revised return, the assessment could have been completed by
12.01.1987 i.e., within one year. It is obvious that under the provisions,
the assessing officer is granted a normal period of one year to complete
the assessment and, if he does so, there can be no waiver of interest
during that period. However, if the assessing officer is not diligent
enough and does not complete the assessment within the said period of
one year, any interest liability for the period beyond that one year cannot
be foisted on the assessee unless the delay in not completing the
assessment within the period of one year is clearly attributable to the
assessee. In the present case, the period of one year which is available to
the assessing officer for completing the assessment ended on 12.01.1987.WPC 1113/1991 Page 17 of 17
For the delay beyond that date, there has to be waiver of interest unless
part of that delay is attributable to the assessee. Here, the delay from
18.01.1988 to 18.02.1988 is clearly attributable to the assessee as it chose
to file the second revised return on 18.01.1988.
19. In view of the foregoing discussion, the writ petition is partly
allowed. There shall be waiver of interest under section 215 of the said
Act in favour of the petitioner for the period 12.01.1987 to 18.01.1988.
20. The writ petition is partly allowed as above. There shall be no


order as to costs.
BADAR DURREZ AHMED, ACJ
R.V.EASWAR, J
AUGUST 23, 2013
kb

 
 
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