TMI Blog2015 (10) TMI 1088X X X X Extracts X X X X X X X X Extracts X X X X ..... ication and held that the delay has not been properly explained and that when returns are filed in response to notices issued under Section 148, assessee will not be entitled to claim refund of advance tax paid. In our view, such an order does not reflect a proper exercise of power under Section 119(2)(b) and for that reason, Ext.P16 is unsustainable. In this case, according to us, when Ext.P16 order was passed in an improper manner, the learned Single Judge ought to have directed reconsideration of Exts.P14 and P15 instead of condoning the delay by himself. Therefore, while we are inclined to agree with the learned Single Judge on the unsustainability of Exts.P13 and P16 orders, according to us, the proper consequential order to be pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for refund on the ground that returns were filed after the due dates for both the assessment years and the claim for refund cannot be entertained. It was thereupon that the assessee filed Exts.P14 and P15 applications before the 2nd appellant to condone the delay in terms of Section 119 (2)(b) of the Income Tax Act. On that application, Ext.P16 order was passed. In that order, the 3rd appellant held that the returns were filed in response to notices issued under Section 148 and that in such a case, the assessee will not be entitled to claim refund of advance tax paid and relied on the judgment of the Bombay High Court in K. Sudhakar S. Shanbhag v. Income Tax Officer [(2000) 241 ITR 865]. The 3rd appellant also held that the assessee has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be examined was whether, to avoid genuine hardship to the assessee, it was necessary to condone the delay in making the application for refund. Ext.P16 order does not show that the Commissioner has examined Exts.P14 and P15 applications in the manner as required under Section 119(2)(b). On the other hand, Commissioner has discussed on the merits of the application and held that the delay has not been properly explained and that when returns are filed in response to notices issued under Section 148, assessee will not be entitled to claim refund of advance tax paid. In our view, such an order does not reflect a proper exercise of power under Section 119(2)(b) and for that reason, Ext.P16 is unsustainable. 7. It is true that the Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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