TaxTMI 
TaxTMI 
2019 (8) TMI 994
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.... Mrs.Utility Builders. The property was sold to Mrs.Shriram Asset Management Company Limited by sale deed dated 14.08.1995 for a sum of Rs. 11,25,000/-. The consideration mentioned in the builders agreement was Rs. 5,20,000/-. Thus, there has been a capital gain of Rs. 6,05,000/-. 2.The question that arose was whether it should be treated as short term capital gains or long term capital gains. According to the assessee, he took possession of the land on 06.03.1992 itself. The sale in favour of Shriram Asset Management Company Limited was on 14.08.1995. Thus, the period of holding the asset was more than three years. But, this stand of the assessee was not accepted by the assessing officer. The assessing officer took the view that the construction was done by the builders on behalf of the assessee. There was no purchase of building. The purchase was only in respect of undivided leasehold interest in the land. The interest in the land was assigned by deed that was executed on 20.01.1994 and registered only on 02.03.1994. According to the assessing authority the legal right to use of the property came only on 20.01.1994 with assignment of leasehold interest in the land and not o....
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....he battle and that is how this writ petition came to be filed. 5.Heard the learned counsel appearing for the petitioner and the learned standing counsel appearing for the respondent. 6.The learned counsel for the petitioner would contend that interest under Sections 234 A, 234 B and 234 C of the Income Tax Act, 1961 are statutorily levies and payable for belated/non payment of advance tax/income tax etc, and that the same is automatic and mandatory. However, the request for waiver of interest will have to be considered in the light of Section 119(2)(a) of the Act read with the Circular issued by Central Board of Direct Taxes in F.No.400/234/95-IT(B), dated 23.05.1996. Clause 2(e) of the said circular provides that where a return of income could not be filed by the assessee due to unavoidable circumstances and such return of income is filed voluntarily by the assessee or his legal heirs without detection by the AO, then levy of interest can be waived. 7.The learned counsel for the petitioner pointed out that the petitioner's father duly filed his return of income on time without detection by the assessing officer. According to the petitioner's counsel, the responden....
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....hether the levy of interest under Sections 234 A, 234 B and 234 C of the Act is to be waived or not. 10.As fairly stated by the learned counsel appearing for the petitioner Sections 234 A, 234 B and 234 C provide for levy of interest for delay/default/deferment in the payment of advance tax/income tax etc. They are statutory levies. Therefore, there can be relief from the said liabilities only if the case of the petitioner can be brought within the scope of the notification issued by the Central Board of Direct Taxes vide F.No.400/234/95-IT(B), dated 23.05.1996. In the affidavit filed in support of the writ petition as well as in the written arguments, the stand of the petitioner is that clause 2 (v) of the Board's circular dated 23.05.1996 must be invoked and not clause (e). 11.This Court carefully went through the contents of the notification bearing F.No.400/234/95-IT(B), dated 23.05.1996. Nowhere is there any clause (v) as claimed by the petitioner in his affidavit as well as in his written arguments. Notification bearing F.No.400/234/95-IT(B), dated 23.05.1996 reads as follows : "In exercise of the powers conferred under clause (a) of subsection (2) of....
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....f the first or subsequent installments of advance tax which was neither anticipated nor was in the contemplation of the assessee and the advance tax on such income is paid in the remaining installment or installments and the Chief Commissioner or Director-General is satisfied on the facts and circumstances of the case that this is a fit case for reduction or waiver of interest chargeable under section 234C of the Income-tax Act. (d)Where any income which was not chargeable to incometax on the basis of any order passed in the case of an assessee by the High Court within whose jurisdiction he is assessable to income-tax, and as a result, he did not pay income-tax in relation to such income in any previous year and subsequently, in consequence of any retrospective amendment of law or, as the case may be, the decision of the Supreme Court in his own case, which event has taken place after the end of any such previous year, in any assessment or reassessment proceedings the advance tax paid by the assessee during the financial year immediately preceding the relevant assessment year is found to be less than the amount of advance tax payable on his current income, the assessee is ....
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....he following circumstances, namely:- (i)where, in the course of search and seizure operation, books of account have been taken over by the Department and were not available to the taxpayer to prepare his return of income; (ii)where, in the course of search and seizure operation, cash had been seized which was not permitted to be adjusted against arrears of tax or payment of advance tax installments falling due after the date of the search; (iii)any income other than "Capital gains" which was received or accrued after the date of first or subsequent installment of advance tax, which was neither anticipated nor contemplated by the taxpayers and on which advance tax was paid by the taxpayer after the receipt of such income; (iv)where, as a result of any retrospective amendment of law or the decision of the Supreme Court after the end of the relevant previous year, certain receipts which were hitherto treated as exempt, become taxable. Since no advance tax would normally be paid in respect of such receipts during the relevant financial year, penal interest is levied for the default in payment of advance tax; (v)where return of income is file....
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....ich could not have been prevented by the exercise of reasonable care. In judicial and quasi judicial proceedings, the possibility is that one's contention may be either accepted or rejected. Rejection of one's legal contention cannot be characterised as an unavoidable circumstance. The decision of the adjudicator is something that is always beyond the control of the assessee and it cannot be foreseen unless of course there is something like match-fixing! The expression "unavoidable circumstance" occurring in clause 2(e) of the circular dated 23.05.1996 cannot obviously encompass outcomes of judicial and quasi judicial proceedings. This is all the more so because, clause 2(d) deals with arising of liability on account of a subsequent decision of the Hon'ble Supreme Court. If adverse judicial or quasi judicial decisions are to furnish a cause for seeking waiver of interest, it would have been expressly stated in clause 2(e) as in clause 2(d). When a person embarks on the journey of litigation, one should always be prepared for an adverse verdict. Therefore, there is nothing unforeseeable about the outcome of judicial or quasi judicial proceeding. 14.As the preambular p....