TMI Blog2011 (1) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... are filed assailing the aforesaid part of the order separately. W. P. No. 6846/09 relates to the assessment year 2000-01 and W. P. No. 6847/09 relates to the assessment year 2002-03. 2. To consider the controversy involved in this case, we have taken W. P. No. 6846/09 for consideration firstly because it relates to accounting year 1999-00 (the assessment year 2000-01) which is a crucial one for the reasons which are stated hereinafter. The petitioner M. P. State Electricity Board, Rampur, Jabalpur, is an assessee under the Income-tax Act, 1961 (hereinafter referred as "the Act"). For the accounting year 1999-2000, the petitioner filed its return under section 139(3) of the Act on March 28, 2002, while the last date of filing the return was on November 30, 2000. As per the provisions of the Act, the petitioner was under an obligation under section 44AB of the Act to get its accounts audited and to file audit report along with the return. 3. The contention of the petitioner before the Central Board of Direct Taxes was in two folds ; (i) that the return could not be filed because of the reasons stated in the application annexure P-2 dated December 15, 2001, before the Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsequently, the petition under section 119(2)(b) stands rejected." 4. Learned counsel for the petitioner reiterated the contentions which were raised before the Central Board of Direct Taxes. He also placed reliance on three judgments in the matter which are Tiam House Service Ltd. v. CBDT [2000] 242 ITR 539 (Mad), Pala Marketing Co-operative Society Ltd. v. Union of India [2008] 218 CTR 80 ; [2009] 311 ITR 177 (Ker) and Lodhi Property Company Ltd. v. Under Secretary, (ITA-II), Department of Revenue [2010] 323 ITR 441 (Delhi) and submitted that the Central Board of Direct Taxes erred in not condoning the delay in filing the return. It was further submitted by Shri Shrivastava that to condone the delay the Central Board of Direct Taxes ought to have considered whether the petitioner would suffer genuine hardship or not if the delay is not condoned, but the order is silent in this regard and without considering this aspect, prayer for condonation of delay has been declined. 5. Shri Sanjay Lal, learned counsel appearing for the respondents submitted that the Central Board of Direct Taxes has considered all the aspects. As per section 44AB of the Act, which has been amended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such body corporates as may be mutually agreed upon between the successor States failing which to such directions as may, from time to time, be issued by the Central Government. (2) Any directions issued by the Central Government under sub-section (1) in respect of the Board or the Corporation shall include a direction that the Act under which the Board or the Corporation was constituted shall, in its application to that the Board or the Corporation, have effect subject to such exceptions and modifications as the Central Government thinks fit. (3) The Board or the Corporation referred to in sub-section (1) shall cease to function as from, and shall be deemed to be dissolved on such date as the Central Government may, by order, appoint ; and upon such dissolution, its assets, rights and liabilities shall be apportioned between the successor States of Madhya Pradesh and Chhattisgarh in such manner as may be agreed upon between them within one year of the dissolution of the Board or the Corporation, as the case may be, or if no agreement is reached, in such manner as the Central Government may, by order, determine : Provided that any liabilities of the said Board relatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld otherwise have been transferred to or re-employed by that State under sub-section (3), read with clause (i) of sub-section (5), shall be transferred to or re-employed by the new Board or the new Corporation instead of to or by that State. (5) an agreement entered into between the successor States under sub-section (3) and an order made by the Central Government under that sub-section or under clause (a) of sub-section (4) may provide for the transfer or re-employment of any employee of the Board or the Corporation referred to in sub-section (1),- (i) to or by the successor States, in the case of an agreement under sub-section (4) or an order made under that sub-section ; (ii) to or by the new Board or the new Corporation constituted under sub-section (4), in the case of an order made under clause (a) of that sub-section, and, subject to the provisions of section 64, also for the terms and conditions of service applicable to such employees after such transfer or re-employment." 8. Sub-section (3) of section 58 specifically provides that the Board shall cease to function as from, and shall be deemed to be dissolved on such date as the Central Government may, by o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der this Act after the expiry of the period specified by or under this Act for making such application or claim and deal with the same on merits in accordance with law. 11. The aforesaid provision empowers the Central Board of Direct Taxes to consider if it is desirable or expedient so to do for avoiding genuine hardship to an assessee to admit an application for condonation of delay. But in the present case this question was not considered by the Central Board of Direct Taxes while considering the question of condonation of delay. The order is silent in this regard. 12. As per the return, a loss near about Rs. 1,500 crores was stated to have been suffered by the Board and it is not a meagre amount which can be ignored while considering the matter on the merits. As the aforesaid facts were not duly brought into the notice of the Central Board of Direct Taxes by filing due application or an affidavit, though these facts were pressed at the time of hearing before the Central Board of Direct Taxes, we find it appropriate to allow an opportunity to the petitioner to file a supplementary application supported by an affidavit before the Central Board of Direct Taxes raising a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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