J.K. Synthetics Ltd. vs Commissioner Of Income Tax And ...
2004 Latest Caselaw 448 Del

JUDGMENT

B.C. Patel, C.J.

1. These two writ petitions were filed against the orders made by the CIT under Section 264 of the IT Act, 1961, whereby the waiver of interest under Section 215 r/w.r. 40(1) of the IT Rules has been denied.

2. The AO has examined the matter for the relevant assessment years and made orders. Being aggrieved by the said orders, the assessed preferred applications under Section. 264 of the IT Act, 1961, in both the cases. The same were disposed of by the CIT as aforesaid. The learned counsel for the petitioner, relying upon the judgment of this Court in CW No. 2009 of 1988, dt. 23rd Oct., 2003, in case titled J.K. Synthetics Ltd. v. CIT (i.e., in the case of the assessed itself) for asst. yr. 1975-76, submitted that these petitions should also be allowed and similar directions should be given so as to enable the AO to decide the matter. In the said case the short question which arose for consideration by this Court was whether the ITO exercised the discretion vested in him under Rule 40 by taking into consideration all the relevant facts or not. On appreciation of the material placed on record, the Court arrived at the conclusion :

"......As regards the waiver of interest for the period from 1st Oct., 1976, to 23rd Sept., 1978, though the CIT has observed that the details/statement asked for were furnished in piecemeal yet it falls short of a finding that delay in making assessment was attributable to the assessed. We have no hesitation in holding that in the absence of such a finding, dismissal of assessed's application for waiver of interest cannot be said to be in accordance with law. In this view of the matter, the impugned orders cannot be sustained."

3. In the instant case, however, we find that, after examining the material, the CIT, while passing the impugned orders, has specifically noted the findings that there was delay which could be attributed to the assessed. It is also required to be noted that the CIT while passing the order has also pointed out that for a particular part of the period for which delay cannot be attributed to the assessed, benefit has to be given and, therefore on the facts, CIT 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 CIT. The facts of CW 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 assessed or not. In the present case, specific findings have been recorded. That being the case, when the CIT 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.

Hence petitions are dismissed.