TaxTMI 
TaxTMI 
2023 (2) TMI 645
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....as follows: a) The petitioner is an individual assessee who has filed his Tax Returns for the assessment years 2009-10 and 2011-12, declaring a total taxable income of Rs.88,37,380/- and Rs.87,10,242/- respectively. The petitioner also filed a return of income for the assessment years 2009 -10 and 2011-12 for his minor son, separately. b) According to the petitioner, it was done by way of abundant caution. The declared income of the petitioner included income of Rs.33,46,321/- and Rs.35,13,860/- of his minor son Master Imaad Musvee (PAN No.AAAPI4751J) and the petitioner also claimed credit of prepaid taxes of Rs.21,27,450/- and Rs.25,41,037/- (including advance tax and TDS) paid on account of his minor son in his return of income. c) The petitioner had included the income of his minor son Master Imaad Musvee as envisaged under Section 64 of the Income Tax Act in his return. He had paid the advance tax on the said minor's income in the PAN number of the minor and also by way of abundant caution filed a return for the minor son showing the same amount in his hands also. d) The second respondent had raised tax demand on the petitioner under Sect....
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....pondent ought to have seen that there is no deliberate lapse on the part of the petitioner in the payment of his taxes and he has also not committed any wilful default and there is no such allegation against the petitioner in the impugned orders also; e) The first respondent ought to have seen that if the taxes deposited under the petitioner's minor son account were duly credited to the petitioner's account immediately on the date of remittance, the petitioner would not be made liable for any tax on interest under Section 234 A, B, C and under Section 220; f) The first respondent ought to have seen that the petitioner once again paid the taxes of Rs.13,26,540/- and Rs.11,48,990/- in his own PAN number on 12.11.2018 and 11.12.2018 respectively and the refund of Rs.16,27,220/- and Rs.13,08,490/- (including interest under Section 244A) on 26.11.2018 and 01.01.2019 respectively; g) The first respondent ought to have seen that the hardship undergone by the petitioner was due to the erroneous action of the second and third respondents in not giving credit to the Advance Tax paid; h) The first respondent ought to have seen that the interest unde....
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....e Tax Office for the said purpose. This would defeat the main purpose behind computerization i.e., to reduce involvement of human element. Therefore, she would submit that only due to the said fact an application under Section 220 (2A) of the Income Tax Act was filed by the petitioner seeking waiver of interest. 5. Per contra, learned Standing Counsel appearing for the respondents would reiterate the contents of the impugned order and would submit that the petitioner had not approached the Assessing Officer for rectification with regard to shortfall of credit, instead, separate returns on the hands of his son were filed which resulted in total refund of Rs.16,85,870/- and Rs.13,08,490/- (including interest under Section 244A). He would also submit that the Assessing Officer has stated that the assessee had paid total demand of Rs.13,26,540/- and Rs.11,48,990/- and hence, there is excess refunds of Rs.3,59,300/- [Rs.16,85,870/- (-) Rs.13,26,540/-] and Rs.1,59,500/- [Rs.13,08,490 (-) Rs.11,48,990/-] causing loss to the Department. According to him, only based on the materials available on record, the respondents have partially allowed the waiver applications filed by the petitione....
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....Section 220 (2A) of the Income Tax Act did exist and only thereafter he can reject an application under Section 220 (2A) of the Income Tax Act, 1961. 10. In the case on hand, excepting for stating that the assessee had not approached the Assessing Officer for rectification with regard to shortfall of credit, instead a separate return in the hands of the minor son was filed which resulted in total refund of Rs.16,85,870/- and Rs.13,08,490/- (including interest under Section 244A) which compelled the respondents to pay an excess refund of Rs.3,59,300/- and Rs.1,59,500/- to the petitioner, the contentions of the petitioner as raised in the petitions filed under Section 220 (2A) of the Income Tax Act both dated 25.02.2021 have not been considered. 11. The respondents before rejecting the petitioner's applications have not taken note of the following undisputed facts: a) The wrong tax demand generated by the third respondent without giving credit to the advance tax paid by the petitioner in the name of his minor son Imaad and there was delay in passing the rectification order dated 30.01.2018 and 12.11.2018 and 18.12.2018 by the second respondent are beyond the contro....
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....y of amount due from him. The first respondent under the impugned order has granted partial waiver of interest to the petitioner at 20% without giving any reason as to how they arrived at that rate. When the first respondent has granted partial waiver at 20%, this Court is of the considered view that too when there is no finding given by the first respondent under the impugned orders that the petitioner has not satisfied the three conditions required for waiver of interest under Section 220 (2A) of the Income Tax Act viz., a) payment of such amount has caused or would cause genuine hardship to the assessee; b) default in the payment of the amount on which interest was payable under the said Sub-Section was due to circumstances beyond the control of the assessee; and c) the assessee has not cooperated in any inquiry relating to the assessment or any proceeding for the recovery of any amount due from him; the first respondent ought to have granted full waiver of the interest to the petitioner, but, instead, erroneously has granted only 20% waiver by passing non speaking orders. 14. However, this Court will also have to take note of the fact that the peti....