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2015 (10) TMI 1088 - KERALA HIGH COURT

2015 (10) TMI 1088 - KERALA HIGH COURT - [2015] 377 ITR 318 (Ker) - Refund application after the expiry of the period - condonation of delay - Held that:- When Exts.P14 and P15 applications were filed by the assessee, what was required 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 require .....

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xt.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 passed is to direct reconsideration of Exts.P14 and P15 with a direction to pass fresh orders in the matter. - WA. No. 1152 of 2013, WP(C).24109/200 .....

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belatedly and Ext.P16 order, declining to condone delay in filing the returns. By the judgment under appeal, relying on the judgment of this Court in Pala Marketing Co-op. Society Ltd. v. Union of India and Others [2008 (1) KLJ 561], the learned Single Judge condoned the delay in applying for refund and remitted the case to the 3rd appellant to reconsider the application for refund afresh and pass orders thereon. It is this judgment which is impugned before us. 2. We heard the learned counsel f .....

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see 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 [(2 .....

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of Directors to authorize any income tax authority, not being a Commissioner (Appeals), to admit an application or claim for any refund 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. As is evident from this Section, the purpose of conferring such authority is for "avoiding genuine hardship". 5. Section 119(2)(b) reads thus: "119(2)(b): the Board may, if it considers it des .....

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n Exts.P14 and P15 applications were filed by the assessee, what was required 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 explai .....

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