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M/s Regen Infrastructure & Services Pvt. Ltd. (formerly) M/s. Renewable Energy Generation Pvt. Ltd. Versus The Central Board of Direct Taxes, The Commissioner of Income Tax, Chennai- Versus , The Income Tax Officer

2016 (3) TMI 875 - MADRAS HIGH COURT

Entitlement to claim carry forward loss - delay in filing the return - Held that:- Petitioner has satisfactorily explained the delay in filing the return on 16.10.2010 instead of 15.10.2010. Further, it is not the case of the respondents that the petitioner is not entitled to claim the carry forward loss under Section 139(3) of the Act. When the petitioner is entitled to claim the carry forward loss under Section 139(3) of the Income Tax Act, it cannot be stated that the delay in filing the retu .....

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laim carry forward loss, mere delay should not defeat the claim of the petitioner. The judgments relied on by the learned counsel for the petitioner squarely applies to the facts and circumstances of the present case. In these circumstances, it is of the view that the first respondent should have condoned the delay of one day in filing the return by the petitioner. - W.P. No. 5137 of 2015, MP. No. 1 of 2015 - Dated:- 14-3-2016 - M. Duraiswamy, J. For the Appellant : Mr. R Sivaraman For the Respo .....

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nal hearing. 2. According to the petitioner, it is a Private Limited Company incorporated under the provisions of the Companies Act and engaged in the business of execution and commissioning of Wind Turbine Generators. As per Section 139 of the Income Tax Act, 2006, the due date for filing of returns is on 30th September of the relevant Assessment year. For the impugned assessment year, the Ministry of Finance-Government of India vide notification in No.402/92/2006-MC (42 of 2010) dated 29.09.20 .....

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filing of returns. Further, the petitioner has stated that on 15.10.2010, they had been trying to upload their returns on the online website of the Income Tax Department since 7.00 P.M. However, due to the last hour rush and due to technical snags in the website of the Income Tax Department, the said return could not be uploaded on 15.10.2010 but only in the midnight of 15.10.2010 and hence, the date of filing has been reckoned by the Income Tax Department as 16.10.2010. It is further stated by .....

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resaid assessment order under Section 263 of the Act for the impugned assessment year 2010-11. In the show cause notice, the second respondent has stated that the benefit of carry forward losses allowed to the Petitioner Company under Section 143(3) is erroneous and prejudicial to the interest of revenue inasmuch as the Petitioner Company has filed their return beyond the last date of filing i.e., 15.10.2010. According to the second respondent, the benefit of carry forward will only be given to .....

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e hardships faced by them in filing the original return on 15.10.2010 which was wrongly reckoned as filed on 16.10.2010 and therefore, to condone the delay of 2 hours in filing their returns and thereby, treat the return filed by them as return under Section 139(1) of the Act to enable the Petitioner Company to claim the carry forward loss under Section 139(3) of the Act. However, the first respondent rejected the prayer made by the petitioner stating that there was no justifiable reason to cond .....

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entions, he relied upon the following judgments: i) The Hon'ble Division Bench of High Court of Bombay in Cosme Matias Menezes (P) Ltd., V. Commissioner of Income Tax, Goa reported in 2015 (379) ITR 31 (Bombay) has held that the first respondent/CBDT has got jurisdiction to condone the delay in filing the returns of income and also held that if sufficient reason is given by the petitioner/assessee for filing the return belatedly, the same can be condoned. ii) In Artist Tree (P) Ltd., V. Cent .....

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and to benefit by resorting to delay. In fact, he runs a serious risk. That apart, the Bombay High Court also held that the approach of the authorities should be justice oriented so as to advance the cause of justice. If refund is legitimately due to the litigant, mere delay should not defeat the claim for refund. iii) In Lodhi Property Company Ltd., Vs. Under Secretary, Department of Revenue reported in 2010 (323) ITR 441, wherein, the Hon'ble Division Bench of High Court of Delhi, has held .....

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unsel relied upon the judgment of High Court of Gujarat in Vahid K.Ravji V. Central Board of Direct Taxes and others reported in 2009 (24) DTR 0268, wherein the Hon'ble Division Bench of the High Court of Gujarat has held that in the absence of genuine hardship caused to the petitioner, the delay in filing the return cannot be condoned. 6. In the judgment of the High Court of Gujarat, it could be seen that the assessee submitted his return for the assessment years viz., 1983-84, 1984-85 and .....

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