TMI Blog2016 (7) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... n or claim for any exemption, deduction, refund or any other relief, in accordance with law. Therefore, when the Commissioner is given the power to adjudicate all such issues and find out that on account of non-payment, genuine hardship will be caused to a person, the Commissioner will have to condone the delay. In the case on hand in Ext.P4, the reference is made to the returns filed for the Assessment years 2006-07 onwards and 2008-09. It is stated that in the subsequent years, returns were filed belated. That by itself cannot be a reason to arrive at a finding as to whether there is any hardship caused to the assessee or not. In the case on hand, it is demonstrated by the material placed that the assessee company was suffering huge lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact that the petitioner Company had suffered losses during the relevant time by itself, ought to have been taken as a reason for condoning delay, as non-payment would have created genuine hardship to the petitioner. 2. Statement has been filed on behalf of the respondents supporting the stand taken in the matter. It is contended that the petitioner has even delayed the returns for subsequent years, which also has been taken note of while considering whether there is any genuine hardship, caused to the petitioner warranting condonation of delay. 3. Section 119 (2) (b) reads as under:- 119.(2): Without prejudice to the generality of the foregoing power: - (b) the Board may, if it considers it desirable or expedient so to do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to herein above and while considering this aspect, the authorities are expected to bear in mind that ordinarily the applicant, applying for condonation of delay does not stand to benefit by lodging its claim late. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice 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. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in Paragraph 5 held as under: 5. So far as the merits of the assessee's claim for condonation of delay is concerned, I find the assessee is bound to get its accounts audited under s.64 of the Cooperative Societies Act. The delay in audit by the auditor appointed under the Act is not attributable to the assessee. Even though standing counsel submitted that the assessee was free to get the accounts audited by any accountant defined under the Act, I do not think this contention can be accepted because audits covered by other statutes are recognised under second proviso to s. 44 A (b) of the IT Act. Until 2001 audited accounts and report in the prescribed form could be filed through the statutory audit. However only from 1st April, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion submitted by the petitioner for condoning delay. It is stated that the petitioner did not have a permanent employee to write up the accounts and even after earnest efforts to find out a competent person. Further, it is indicated that there is delay in completion of accounts and consequent delay in completion of audit. It is also pointed out that the assesssee will be deprived of ₹ 2,11,490/- which is to be refunded. In the application, the petitioner has also relied upon various judgments. Ext.P2 is issued for the corresponding year. It is therefore relevant to note that the total amount which is sought to be refunded is more than ₹ 6 lakh. Ext.P3 is submitted to the Commissioner of Income Tax, wherein the petitioner had gi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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