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M/s Dilip Buildcon Ltd. Versus Union of India & Others

2016 (7) TMI 215 - MADHYA PRADESH HIGH COURT

Claim of refund - Condonation of delay in filing the return - genuine hardship - application u/s 119(2)(b) - Held that:- It is clear that a search operation was carried out at the residence of members of the management of the company and the office of the company and its sister concerns. The authorities had seized thousands of loose papers, books of accounts of the company, hard disc and other relevant documents. The petitioner received seized material finally on 21.10.2013. The papers were thou .....

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d refund of ₹ 2,08,73,620/-. The business of the petitioner is quite huge. The seizure operations were carried out at headquarter of the petitioner company, residence of office bearers and near about 28 sister concerns. In these circumstances, looking to the magnitude of accounts, it is unreasonable to hold that the petitioner could have had completed the process within a period of one month after receiving the final set of documents on 21.10.2013. In our opinion, in the facts and circumst .....

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P/7 dated 09.06.2015, by which the application of the petitioner filed under Section 119(2)(b) of Income Tax Act, 1961 has been rejected. 2. The petitioner is a public limited company incorporated under the provisions of Companies Act, 1956. It is engaged in the business of infrastructure development i.e. construction of roads, bridges, residential houses and commercial complexes. Search proceedings under Section 132 of the Income Tax Act, 1961 (hereinafter called as the Act of 1961) were carrie .....

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02.2013 and 21.10.2013. Thereafter, it filed the income tax return for the assessment year 2013-14 on 31.03.2014. The due date for filing the return was 30.11.2013. 3. Because the petitioner did not file the return within time and it was filed belatedly, the claim under Section 80IA was not allowed to the petitioner due to express provision contained in Section 80AC of the Act of 1961. The petitioner pleaded that because it did not file return within time, hence, refund of an amount of ₹ 2 .....

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were made available to the petitioner on 21.10.2013. The petitioner reconciled all the documents and it was not possible for the petitioner to file the return on due dated i.e. 31.11.2013. Thereafter, the petitioner filed return on 31.03.2014. The petitioner further pleaded that it had filed the return regularly in previous time. There was no delay in filing return. The respondents in reply pleaded that the petitioner had received the required documents which were seized by the authorities duri .....

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d has not applied its mind properly in arriving on a conclusion that the petitioner is not eligible to condone the delay of four months. In support of his contentions, learned counsel relied on the following judgments : 1) Sitaldas K. Motwani vs. Director General of Income Tax (International Taxation), New Delhi [2010] 323 ITR 223 (Bombay). 2) Artist Tree (P.) Ltd. v. Central Board of Direct Tax [2014] 369 ITR 691 (Bombay). 3) B.M. Malani v. Commissioner of Inocome Tax, [2008] 306 ITR (SC). 4) R .....

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oner cannot get benefit of its own wrong. The authority has considered the case of the petitioner and passed appropriate order. Hence, there is no merit in this petition. In alternate, learned counsel for the revenue has submitted that the matter may be remanded back to the Board for fresh consideration. In support of his contentions, learned counsel relied on the following judgments : 1) Madhya Pradesh State Electricity Board vs. Union of India & another reported in (2011) 239 CTR 0087; 2) .....

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he claim for refund after expiry of the period specified in the Act. The relevant provision reads as under: 119(2)(b). the Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case or class of cases, by general or special order, authorise any income-tax authority, not being a Commissioner (Appeals) to admit an application or claim for any exemption, deduction, refund or any other relief under this Act after the expiry of the period specified by or un .....

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vs. Director General of Income Tax (International Taxation), New Delhi reported in [2010] 187 Taxman 44 (Bombay) has held as under in regard to genuine hardship: 15. The phrase €œgenuine hardship €¯ used in Section 119(2)(b) should have been construed liberally even when the petitioner has complied with all the conditions mentioned in Circular dated 12.10.1993. The Legislature has conferred the power to condone delay to enable the authorities to do substantive justice to the parti .....

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tice being defeated. As against this, when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable n .....

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to genuine hardship: €œ11. The expression genuine hardship €™ came up for consideration of the Supreme Court in case of B.M. Malani (supra), wherein, by reference to New Collins Concise English Dictionary, the Supreme Court accepted the position that genuine €™ means not fake or counterfeit, real, not pretending (not bogus or merely a ruse). Further, a genuine hardship would, interalia, mean a genuine difficulty. The ingredients of genuine hardship must be determin .....

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of the Apex Court reported in B.R. Malani vs. CIT, [2008] 306 ITR 196/174 Taxman 363 (SC). 11. From the above cited judgments, the legal principle is that the word genuine hardship €™ used in Section 119(2)(b) of the Act of 1961 is to be construed liberally and the expression genuine €™means not fake or counterfeit, real, not pretending (not bogus or merely a ruse). This is dictionary meaning of the word genuine €™. However, when the delay is deliberate or on accoun .....

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apers were thousands in numbers and entries were running on lacks. Documents, prior to the aforesaid date, were not in possession of the petitioner. Hence, the petitioner was not able to finalize the accounts and determine the tax liability. The search and seizure proceedings were conducted on 23 group concerns of the assessee. Within one month, it was not possible for the petitioner to file return because the petitioner in the return disclosed total income of ₹ 2,65,57,04,226/-. Petitione .....

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