TMI Blog2011 (12) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... ot unmindful of the possibility of future occurrence of innumerable situations which are likely to cause genuine hardships to citizens in course of collection of revenue such as the one herein but which could not be foreseen by it at the time of enacting the legislation and it is apparently with a view to meet such exigencies that section 119(1)(b) of the Act was engrafted. In my judgment, section 119(1)(b) is the appropriate provision to deal with cases of this nature. No other issue remains for consideration. For what has been stated in the foregoing, this writ petition succeeds. The petitioner is entitled to condonation of the delay in filing the claim for refund. Resultantly, the respondent authorities are directed to process the application of the petitioner trust for refund ₹ 8,93,773 and refund the amount in accordance with law along with interest at the rate of 12 per cent. per annum with effect from the date when the application for refund was first filed before respondent No. 2. - W. P. (C.) No 85 (SH) of 2011. - - - Dated:- 16-12-2011 - T. VAIPHEI J. V. K. Jindal, Senior Advocate and S. Dey, Advocate, for the petitioner. U. Bhuyan, Senior Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax for those assessment years had been filed beyond the time-limit, they were treated as invalid returns and rejected the application for the TDS refunds. This prompted the petitioner-trust to prefer Appeal No. SHILL-64/-2000-01 on December 21, 2000, but the same was dismissed by respondent No. 3 on March 25, 2004, as incompetent and without jurisdiction and advised it to avail of other remedies such as filing an application under section 119 of the Act. The petitioner-trust accordingly filed four separate petitions before the Chief Commissioner of Income-tax, Shillong (CCIT) under section 119(2) of the Act on May 21, 2004, which was received on May 25, 2004, for refund of the TDS. The Income-tax Officer (Tech.) from the Office of the Commissioner of Income-tax by his letter dated March 9, 2006, intimated the petitioner-trust to the effect that for judicious exercise of direction provided under section 119(2)(b), it is necessary that a comprehensive note is submitted by the petitioner to establish on record that it was prevented by reasonable cause from complying with the provisions of section 139 in so far as filing of return of income within the statutory time limit is conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income-tax rightly rejected the application of the petitioner under section 119(2)(b) of the Act as there was neither genuine hardship nor could it show a reasonable cause for the delay : the case of the petitioner squarely falls within the ambit of section 239(2)(c) of the Act. In other words, the claim for refund could not be entertained under section 239(2)(c) of the Act since the petitioner had failed to file the return within the stipulated period. It is also contended that the Assessing Officer can only act upon any return if it is filed under sections 139(1), 139(4) and 239(2)(c) of the Act : none of the aforesaid provisions were invoked by the petitioner for filing of the Income-tax returns. The question of invoking section 147 also does not arise inasmuch as this is not a case of escapement of income. The answering respondents deny that the delay has been caused by them by taking more than 10 years to decide the question of refund of the TDS amount : there is no delay as such. It is submitted by the answering respondents that the impugned orders dated September 22, 2000, and June 9, 2010, are valid and do not call for the interference of this court : the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1968, three years from the last day of assessment year ; (c) where the claim is in respect of income which is assessable for any other assessment year, one year from the last day of such assessment year ; (d) where the claim is in respect of fringe benefits which are assessable for any assessment year commencing on or after the first day of April, 2006, one year from the last day of such assessment year. 6. According to the respondent authorities, respondent No. 4 rejected the application of the petitioner under section 119(2)(b) of the Act as there was neither genuine hardship nor could it show any reasonable cause for the delay in claiming the refund. Similarly, the claim of refund made by the petitioner could not be entertained under section 239(2)(c) of the Act in view of the non-filing of return within the stipulated period. It is the further contention of the Revenue that an Assessing Officer can act upon any return only if it is filed in accordance with sections 139(1), 139(4) and 239(2)(c) of the Act : none of these provisions were invoked by the petitioner for filing the Income-tax returns. There is no dispute that since all the income generated by the NEEPCO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Kerala Co-operative Societies Act, 1969. Invariably, the statutory audit was delayed and for the current accounting year also, the petitioner's audit was completed only on January 28, 2000. After completion of audit, the petitioner filed return claiming refund of advance tax and TDS remitted by others through exhibit P5 application. The Assessing Officer rejected the return as time-barred and consequently declined to refund. The application filed by the petitioner before the Central Board of Direct Taxes under section 119(2)(b) of the Act for condonation of delay in filing the refund application was rejected. The Kerala High Court held that Chapter XIV of the Act is mainly oriented to ensure assessment and recovery of tax to protect the interests of the Revenue, whereas Chapter XIX provides for refund and an application in this regard can be entertained only if it is filed within the time limit prescribed under section 239 of the Act ; that if the delay is not condoned by the Board under section 119(2)(b), such application cannot be processed under section 139(1) or 139(4) of the Act and that in order to consider belated return for refund on the merits, delay has to be nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessee was entitled to have refund of the excess amount, the Madras High Court held at paragraphs 5, 6 and 7 of the judgment as follows (page 187) : Section 237 of the Act does not specify that an assessment order must be made and that some amount must be found to be payable as tax and that some amount in excess of that amount should have been paid. It is not a pre-condition for invoking that section that some liability for tax must have been cast upon the person claiming refund. According to the Department, there had been some delay in claim ing the refund by the assessee. The amounts had been paid in the year 1982-83. The proceedings under section 148 of the Act were dropped on July 17, 1990. The petitioner who is a widow had applied to the Board on August 11, 1990, under section 119(2)(b) of the Act. By the impugned letter of April 4, 1991, the Income-tax Officer conveyed to the petitioner the Central Board of Direct Taxes's decision to reject the petitioner's request without setting out any reasons. This is hardly the manner in which the State is expected to deal with the citizens, who in their anxiety to comply with all the require ments of the Act pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (Appeals) to admit an application or claim for exemption, refund even belatedly and dispose of the same in accordance with law. Parliament was obviously not unmindful of the possibility of future occurrence of innumerable situations which are likely to cause genuine hardships to citizens in course of collection of revenue such as the one herein but which could not be foreseen by it at the time of enacting the legislation and it is apparently with a view to meet such exigencies that section 119(1)(b) of the Act was engrafted. In my judgment, section 119(1)(b) is the appropriate provision to deal with cases of this nature. No other issue remains for consideration. 10. For what has been stated in the foregoing, this writ petition succeeds. The petitioner is entitled to condonation of the delay in filing the claim for refund. Resultantly, the respondent authorities are directed to process the application of the petitioner trust for refund ₹ 8,93,773 and refund the amount in accordance with law along with interest at the rate of 12 per cent. per annum with effect from the date when the application for refund was first filed before respondent No. 2. The entire exercise sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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